Presidential and Legislative Elections in the Democratic Republic of the Congo

November 28, 2011

Final Report

Waging Peace. Fighting Disease. Building Hope. The Carter Center strives to relieve suffering by advancing peace and health worldwide; it seeks to prevent and resolve conflicts, enhance freedom and democracy, and protect and promote human rights worldwide. Presidential and Legislative Elections in the Democratic Republic of the Congo

November 28, 2011

Final Report

One Copenhill 453 Freedom Parkway Atlanta, GA 30307 (404) 420-5188 Fax (404) 420-5196 www.cartercenter.org The Carter Center

Contents

Foreword ...... 2 Postelection Developments ...... 55 Executive Summary ...... 4 Tabulation...... 55 Presidential Election Results ...... 60 Historical and Political Background . . . . . 13 Legislative Results...... 61 Electoral Institutions and Legal Framework for Electoral Dispute Resolution...... 63 the Presidential and Legislative Elections . . . 16 Legal Framework...... 16 Conclusions and Recommendations ...... 66 Electoral System...... 18 Appendix A: Acknowledgments ...... 73 Election Management...... 21 Appendix B: Terms and Abbreviations . . . . 75 Boundary Delimitation...... 26 Appendix C: Letters of Invitation ...... 76 Pre-Election Developments ...... 28 Appendix D: The Carter Center Observation Voter Registration...... 28 Delegation and Staff ...... 78 Voter Education...... 32 Appendix E: Observer Checklists ...... 80 Candidates and Parties...... 34 Appendix F: Deployment Map ...... 89 Campaigns...... 37 Campaign Finance...... 38 Appendix G: Carter Center Public Statements and Reports ...... 90 The Media...... 41 Civil Society...... 43 The Carter Center at a Glance ...... 139 Electoral Dispute Resolution...... 44 Election-Related Violence...... 46 Election Day ...... 48 List of “Omitted Voters” ...... 48 Opening and Polling...... 50 Closing and Vote Counting ...... 52 Security...... 53 Access for Domestic Observer Groups and Party Agents ...... 54 The Carter Center

1 The Carter Center

Foreword

By Dr. John Stremlau support of the American and Dutch people, and we Vice President, The Carter Center Peace Programs give special thanks to their representatives in the Co-leader, The Carter Center International Election DRC, U.S. Ambassador James F. Entwistle and Royal Observation Mission to the DRC Netherlands Ambassador Robert van Embden. illions of Congolese citizens voted in The U.N. peacekeeping mission to the DRC, national elections on Nov. 28, 2011, their while much less helpful than in 2006 in ensuring Msecond opportunity to exercise this basic security during the voting, continues to play an human right since a still fragile peace accord was essential role helping secure the nation and the brokered by South Africa in April 2002 following opportunity to build a more inclusive, productive, and five years of Africa’s deadliest conflicts. The Carter equitable democratic republic. We continued to rely Center accepted invitations from the Independent on the help of the United Nations in deploying our National Elections Commission (CENI) to observe observers to distant and otherwise inaccessible voting the 2006 and the 2011 elections. On both occasions, precincts, and we thank the secretary-general’s special we witnessed the spirit of the Congolese people and represent­ative Roger Meece and his team for their a determination to vote that deserves continued advice and assistance. One major difference between international support and encouragement. These the 2006 and 2011 elections was that the United two national elections are rightly regarded to be the Nations ran and international donors paid for the first freest and most inclusive since Belgian colonialism round, but the Congolese authorities managed and collapsed in 1960. mostly paid for last year’s election. As the following report details, there were Not covered in this report is a parallel Carter many challenges in the conduct of these elections, Center project to assist in the training and develop- especially the compilation of results, which also ment of a large cohort of domestic observers who also should be a cause for continuing international played a vital role in monitoring the conduct of the interest and concern. Problems with registration, 2011 election. The Center’s partnership with civil voter lists, long lines, complex voting procedures society organizations in the DRC, under the terms of and candidate lists, and instances of intimidation a memorandum of understanding with the Congolese and physical danger did not deter the majority of government, reflects our deep belief in the future people from demonstrating their desire for democracy of the DRC as a stable, prosperous democracy. We and the opportunity to vote for their candidates of decided to pursue this opportunity following the 2006 choice. Promoting and protecting these rights are election and extensive consultations with Congolese responsibilities of the CENI, with the support of the authorities and civil society representatives. This government of the Democratic Republic of the Congo process continues, and we hope it will benefit from (DRC) and the active encouragement of the interna- the insights and lessons contained in this report. tional community. The second postelection statement of the We are grateful for the welcome we received from Center’s international observation mission, issued all major political actors in this vital election. We on Dec. 10, 2011, concluded that the final presiden- were honored to have as our senior mission leader tial results announced by the CENI “were not Zambia’s former president, Rupiah Banda. Our credible,” although we were unable to determine mission was funded primarily through the generous if the ranking of the candidates “necessarily would

2 The Carter Center 2011 Elections in the Democratic Republic of the Congo

have been different.” In essence, we do not know province, the CENI certified implausibly high turnout who actually won the presidential election, a finding numbers that typically favored the incumbent by reaffirmed but explained in greater detail in this margins as high as 100 percent. What we do not final report. know is how many of the votes in areas where the Supporters of the current government have vigor- incumbent has long enjoyed majority support may ously challenged our findings, noting that while there be due to vote-stuffing or how many of the lost and were shortcomings in the process, these could not mishandled ballots in the precincts where the opposi- have been on a scale to wipe out the incumbent’s tion traditionally dominates were actually due to vote 3 million-vote plurality. The opposition disagrees. suppression by authorities loyal to the incumbent. While Carter Center observers could not visit all We share these findings and the recommendations precincts in a country as vast and as deficient in basic for improving electoral practices in the hope that infrastructure as the DRC, we were able to deploy improvements will be made ahead of the upcoming long-term observers who traveled throughout the provincial and local elections and well before the country for four months to assess the political context next presidential election in 2016. The Carter Center and conduct of the elections. has observed more than 80 national elections in We readily acknowledge the huge logistical and all regions of the world. We conduct our work in technical challenges the CENI had to overcome in accordance with the Declaration of Principles for order to meet deadlines for the registration and voting International Election Observers that was adopted by that many impartial international experts believed to all the major international monitoring organizations be impossible. In many areas, our observers strongly at the United Nations in 2005; and we assess elec- commended the dedication and determination of the tions based on the country’s national legal framework local election staff and supervisors who demonstrated and its international obligations for genuine demo- that under daunting conditions, they could perform cratic elections. These widely accepted, impartial at or above international standards. Yet we also noted international principles and standards provide the that the worst examples of mismanaged voting proce- framework for the following report and we hope will dures and results compilations, which we observed gain greater acceptance and application in all future and documented, were in opposition strongholds, elections in the Democratic Republic of the Congo, most notably Kinshasa. Elsewhere, notably in Katanga solely for the benefit of the Congolese people.

3 The Carter Center

Executive Summary

he history of elections in the Democratic (with runoff between top two candidates if necessary) Republic of the Congo has been marked by to a single round plurality. Textreme challenges, starting with the 1961 Compared to 2006, the current political environ- assassination of the first elected prime minister, ment of the DRC, with its 417 political parties at Patrice Lumumba. Democratic elections would not the time of the elections, was very different. The be held again until the 2006 transition elections, Presidential Majority (MP) bloc of President Joseph designed to consolidate the Congolese peace process Kabila hardened conditions for parties to join its after 10 years of civil war. The 2011 elections were coalition, and the pro-Kabila People’s Party for an opportunity to reinforce a democratic culture with Reconstruction and Democracy (PPRD) became the participation from the leader of this bloc. In full range of political contrast to his 2006 actors and the support election boycott, long- of the international time opposition leader community. For the The 2011 elections were an opportunity to Etienne Tshisekedi newly established reinforce a democratic culture with participation announced his candi- Independent National from the full range of political actors and the dacy for the presidency. Election Commission The Movement for the (CENI), the Nov. 28, support of the international community. Liberation of Congo 2011, presidential and (MLC) party, which national legislative produced the second- elections were the first place finisher in the test for a Congolese-led organization of elections. 2006 elections (Jean-Pierre Bemba, now detained Although it still benefited from international donor in The Hague facing charges of crimes against assistance and support from the United Nations mis- humanity), did not submit a presidential candidate in sion in the Congo, the role of international actors in 2011. An additional important contrast to the 2006 these elections was much reduced compared to 2006. elections was the emergence of a new high-profile Upon receiving a formal invitation to observe from party, Congolese Union for the Nation (UNC), the CENI on June 16, 2011, The Carter Center estab- led by a former Kabila loyalist, Vital Kamerhe. The lished an international election observation mission absence of a common opposition candidate coupled in the DRC on Aug. 1, 2011, and deployed its first with the constitutional change to the electoral system group of 10 long-term observers (LTOs) on Aug. 17, greatly increased the chance of a Kabila single-round followed by another 10 LTOs in September. victory. The principal stakes of the elections were twofold. Besides the 11 presidential candidates, 18,386 They were a test for the CENI, which for the first candidates were accepted by the CENI to compete for time had complete control of the organization of the 500 National Assembly seats. There was no female electoral process. The elections also were a test for candidate for the presidential elections, and only the reaction of opposition parties and voters to an 12 percent of legislative candidates were women. early 2011 constitutional amendment that changed The CENI faced significant organizational and the presidential race from a majoritarian election logistical challenges. Established in April 2011, the

4 The Carter Center 2011 Elections in the Democratic Republic of the Congo

CENI was behind schedule even before it started to Nevertheless, certain shortcomings of the CENI organize for the elections. The very high number of cannot be attributed to time pressures but rather a candidates for the legislative elections also created lack of political will, including: formidable complications. In many districts, the • The lack of sustained and structured consultation CENI was obliged to create a legislative ballot of with political parties, which could have corrected several dozen pages to accommodate the large number certain technical challenges of this process of candidates. The design, printing, and distribu- • The lack of transparency shown by the CENI to tion of ballots as well as the ballot boxes needed to its partners, above all, national and international accommodate the large ballots presented procurement observation missions and distribution problems for the CENI, leading to speculation right up to election day that a delay for • The lack of opposition access to the central server technical reasons would be necessary. of the CENI Added to the persistent uncertainty about the Carter Center LTOs reported that the formal election CENI capacity was an equally challenging lack of campaign period was largely peaceful with few signifi- confidence on the part of opposition parties that the cant incidents of violence (with the exception of one election commission was acting in a neutral and unbi- death). Analysis of the media showed a strong bias by ased fashion. The CENI thus faced management and the state broadcaster in favor of Joseph Kabila. logistical challenges that were in turn often rapidly In addition to the 20 LTOs deployed by The politicized. Also overshadowing the campaign period Carter Center, 40 short-term observers arrived in the were a variety of problems, including: DRC shortly before election day to observe polling, • Delays attributed to the poor management of orders counting, and tabulation. The observers were led by for ballots and ballot boxes former Zambia President Rupiah Banda and Carter Center Vice President for Peace Programs Dr. John • Delayed publication of the map of polling station Stremlau. The Center’s assessment of the election locations and the concerns of the political opposi- process was conducted with reference to Congolese tion regarding its accuracy law and international standards for elections and in • Recruitment of polling station workers that was accordance with the Declaration of Principles for done in a short period without consultation with International Election Observation and the Code political parties of Conduct for International Observers. In the DRC, • Failure to post voter lists within the time frame the Center’s mission coordinated and consulted mandated by the electoral law with other international and domestic nonpartisan These and other missed deadlines pointed to a election observers. chronic management problem at the CENI in which, The presidential and legislative elections were although tasks were generally completed, the body held on Nov. 28 but were extended until Nov. 29 could not meet the demands of its own election and even Nov. 30 in some places. When certain calendar, operating instead on a near constant crisis districts were still in the middle of voting, others basis. Faced with a constitutional deadline to hold the were in the process of counting ballots, while some elections by Dec. 6, 2011, any delay to hold the elec- districts were still waiting to receive ballot papers tion could have opened the door to legal complaints flown in from South Africa. Thus, the CENI was concerning the legitimacy of the incumbent presi- responsible for managing several unorganized and dent. Some analysts believed that opposition parties disjointed processes throughout the voting districts hoped for such an outcome, as they might try to for the same election. capitalize on a constitutional crisis and use political negotiations for access to power. 5 The Carter Center 2011 Elections in the Democratic Republic of the Congo

Congolese voters turned up on election day, and hung on a line to dry. This chaotic management polls were generally peaceful despite incidents in of the reception of results envelopes — along with some parts that caused destruction at polling stations. violence in some places on election day — resulted Carter Center observers found significant confusion in the loss of at least 3,000 envelopes at the national on the part of voters about where they were supposed level, 2,000 of which were in Kinshasa, in total repre- to vote and general mismanagement of the voter senting more than 1.2 million lost votes of approxi- list by election workers. The national average voter mately 18.5 million total.1 turnout was 58.81 percent, excluding Katanga prov- Beginning on Dec. 2, the CENI began to publish ince, which recorded a higher level of participation partial results for the presidential election. This was a than the national average and where certain districts welcome move as partial results could help to reduce reported 100 percent participation, leaving doubts rumors and permit the remainder of CLCRs to finish about the credibility of these figures. their tabulation work. After the close of polls, On Dec. 9, the CENI ballots were counted at announced the provisional polling stations with the results for the presidential results announced and posted election, giving incumbent at the conclusion of counting. Congolese voters turned up on president Joseph Kabila 48.95 Ballots and ballot boxes were election day, and polls were generally percent of the vote, Etienne then transported to one of peaceful despite incidents in some Tshisekedi in second position 169 local tabulation centers with 32.33 percent, and Vital (CLCR) for processing and parts that caused destruction at Kamerhe in third position tabulation. Although many polling stations. with 7.74 percent. CLCRs were able to complete In a Dec. 10 public state- their work according to ment, the Center reported procedures, many others were that these results lacked cred- the scene of chaotic activity that reflected a lack of ibility in a number of aspects. Notably, in Katanga organization on the part of the CENI. Tabulation province, the rate of voter turnout was at or near 100 centers in several politically sensitive parts of the percent in more than a dozen districts; the rate of country, notably in the capital Kinshasa and the spoiled ballots was extremely low; the rate of collec- southeastern city of Lubumbashi, were very badly tion was also 100 percent; and in four districts, vote managed with significant obstacles to the timely totals for Kabila were at or very close to 100 percent. and secure receipt of results forms and ballot papers Coupled with the loss of a significant number of arriving from polling stations. The CENI was not polling station results, the Center concluded that the prepared to provide physical protection from the CENI’s overall management of the results process was elements for either the CENI staff or their materials, poor and the results lacked credibility. leaving such sensitive documents as the results forms Only the third-place candidate, Vital Kamerhe, exposed and insecure. submitted a complaint to contest the provisional In Kinshasa, Carter Center observers saw damaged results envelopes lying on wet ground, rendering them inadmissible upon receipt by the CLCR; yet others were opened by the CENI workers, who said they needed to finish the paperwork. In Lubumbashi, 1 The European Union (EU) election observation mission cites a higher Carter Center observers witnessed wet results forms figure of 4,875 missing polling stations results, representing 7.63 percent of the national total of voters.

6 The Carter Center 2011 Elections in the Democratic Republic of the Congo

presidential election results. Etienne Tshisekedi chose same seven locations were included in the presiden- not to seek recourse through the Supreme Court, tial tally without question. There is no public record stating that he lacked confidence in its impartiality. of the aforementioned violence and disruption on In a Dec. 16 ruling, the Supreme Court rejected election day. Kamerhe’s complaint, upheld the provisional CENI The legislative elections results have produced a results, and officially proclaimed Joseph Kabila’s fractured National Assembly in which 98 political re-election by a plurality of votes for a mandate of parties are represented. The composition of the five years. The elected candidate took his presidential assembly is further politically fragmented by 76 oath on Dec. 20, 2011, before the Supreme Court, as political parties with five or fewer seats (of which called for by the constitution. 45 parties have a single deputy). The 12 parties with Etienne Tshisekedi did not wait for the final results the largest representation are: People’s Party for before refusing to accept the results announced by the Reconstruction and Democracy (PPRD), Union for CENI and asking Kabila to step down. He proclaimed Democracy and Social Progress (UDPS), People’s himself president on Dec. 23 at his residence in Party for Peace and Democracy (PPPD), Social Limite district of Kinshasa, where he was surrounded Movement for the Renewal (MSR), Movement for by police and under de facto house arrest. Multiple the Liberation of Congo (MLC), United Lumumbist public protests occurred, and protesters were often Party (PALU), Congolese Union for the Nation met with brutal police response. A U.N. report docu- (UNC), Alliance for Congo’s Renewal (ARC), mented at least 36 confirmed killings by police and Alliance of Congo Democratic Forces (AFDC), other security forces in Kinshasa, the wounding of 83 Awakening of Conscious for Work and Development others, and the arrest of hundreds. (ECT), Rally for the Reconstruction of Congo The CENI suspended tabulation of legislative (RRC), and the Movement for the Integrity of results on Dec. 21 after observers, party agents, the People (MIP). candidates, and political organizations reported a Only the PPRD has at least one elected deputy number of cases of fraud. On Dec. 28, the CENI from each of the Congo’s 11 provinces. This frag- resumed tabulation work and began to announce mentation of the political landscape, along with the partial results. After several delays, on Jan. 26, 2012, large number of candidates and political parties that the CENI announced the final provisional results for contested the legislative elections, shows the fragility 155 of 169 CLCRs, excepting Kongolo, Popokabaka, of the political class and its attachment to ethnic or Rutshuru, Mbuji Mayi, Kinshasa’s Lukunga District, territorial ties.3 Mt. Amba, and Tshangu, as well as seven districts in As of May 2012, many legislative election which the CENI had difficulties compiling the results, complaints remained before the Supreme Court, citing cases of violence on election day. but it seems unlikely that the court will exercise its On Feb. 1, 2012, the CENI published the mandate to order a more thorough review of the remaining provisional legislative results. The electoral process and accountability of the election commission leadership proposed a cancellation of the voting from seven districts: Kiri in Bandundu; Demba in Kasai Occidental; Ikela in Equateur; Kole and Lomela in Kasai Oriental; Masisi in North Kivu; and Punia in Maniema. The commission justified its 2 The Supreme Court denied CENI’s request to exclude these legislative request to the Supreme Court of Justice (CSJ) on the results. grounds of cases of violence that took place on the 3 Tribalism and regionalism are contrary to Article 5 of Law 04/002 of day of elections.2 It is unclear why results from these March 15, 2004, for the organization and functioning of political parties.

7 The Carter Center 2011 Elections in the Democratic Republic of the Congo

commission. The legitimacy of the Congo’s fragile an upper limit to campaign spending to balance democratic institutions — the office of the president, the weight of the respective candidates on the the National Assembly, the election commission, campaign trail. and Supreme Court — has been undermined rather The Center will continue to remain engaged in than strengthened by the 2011 election experience. the DRC through initiatives including human rights The Carter Center appreciates the invitation to defense, mining contracts, and training of domestic observe these elections and hopes that the assessment observers for the provincial elections. communicated in this report will contribute to the future strengthening of those institutions in pursuit of The Carter Center in the DRC genuine democratic elections. The Carter Center’s current involvement in the The Carter Center recommends a number of DRC began when the Center observed the milestone important steps to improve the conduct of future 2006 presidential and elections, including the parliamentary elections. upcoming provincial The Center’s Democracy elections. The Center Program launched its recommends that the The legitimacy of the Congo’s fragile international election president accelerate the observation mission in establishment of the democratic institutions— the office of March 2006 with the constitutional court, the president, the National Assembly, establishment of a small as called for under the the election commission, and Supreme field office in Kinshasa constitution, to allow for Court— has been undermined and deployment of long- greater transparency and rather than strengthened by the term observers shortly impartial effective remedy thereafter. A 58-member for voters and candidates. 2011 election experience. delegation, led by former The Center also urges the Prime Minister of Canada government to re-examine Joe Clark and Carter the composition of CENI Center Vice President of Peace Programs Dr. John leadership to reform its structure so that it represents Stremlau, observed voting on July 30, 2006. all Congolese political actors and allows for civil With no presidential candidate reaching the 50 society representation. percent of votes necessary for a majority victory, a The Center encourages Parliament to allow runoff was scheduled between the top two candidates, the CENI at least 18 months, in contrast to seven Jean Pierre Bemba and Joseph Kabila. The Center months for the 2011 elections, to prepare for the deployed a 45-member delegation, again led by former next presidential and parliamentary elections in 2016. Prime Minister Clark and Dr. Stremlau, to observe The Center strongly advises the CENI to set a firm the runoff and found voting on Oct. 29 to be peaceful date for an audit of these presidential and legislative and orderly. With Bemba accepting defeat on Nov. elections by political opposition representatives. 28, the Center completed its observation mission and The Center also recommends that the newly elected closed its elections field office in Kinshasa. Parliament take steps to ensure that every citizen Following the 2006 elections, the Center main- is able to exercise his or her right to stand for office. tained an active presence in the DRC through its This should be accomplished by reducing or elimi- Human Rights Program. Stemming from a demand nating the requirement to have a minimum amount from Congolese civil society organizations (CSOs), of money in bank accounts and by establishing

8 The Carter Center 2011 Elections in the Democratic Republic of the Congo

the Center established the Human Rights House (HRH) in the spring of 2007. The HRH enables over 200 Carter Center Jules Lalancette partner CSOs to become more effective through training, research, and meeting facilities and provides them with a safe space where they can meet with state officials to work toward policy reform. For CSOs to be able to operate, however, there needs to be a minimum of security and protection. In coordination with its partners, HRH staff advocates for increased protection of human rights defenders and organiza- tions and strives to ensure that political space is sufficient for President Rupiah Banda (center), accompanied by field office director Baya Kara (far left), these organizations to carry out co-leader Dr. John Stremlau (second from left), and project manager David Pottie (far right), reads recommendations from the Carter Center’s preliminary statement. their vital work. The HRH also supports local organizations in developing solidarity-based alert and prevention systems. Center launched its international election observa- The Center’s Human Rights Program also tion mission in August 2011 with the establishment focuses on natural resource governance, with a of a field office in Kinshasa and the deployment particular focus on industrial mining governance. of 10 long-term observers to key provinces. These In cooperation with selected local partners, the 10 observers were joined by an additional 10 in Human Rights Program works to improve transpar- September, allowing the Center to have full coverage ency and accountability in the mining sector in order across all 11 provinces. For the single round of to increase revenue generation, a stepping stone for presidential and parliamentary elections scheduled the realization of social and economic rights. This for Nov. 28, the Center fielded a 75-member interna- work includes mining contract negotiations, training tional delegation representing 37 countries. NGOs to conduct human rights impact assessments Concurrent to the Center’s 75-member delega- in mining communities, and bringing technical exper- tion for the international election mission, the tise to multistakeholder (civil society, government, HRH worked with the Catholic Episcopal Justice and mining companies) meetings convened for and Peace Commission (CEJP) to train and deploy policy dialogue and joint problem solving in 6,300 domestic observers throughout the country to mining practice. observe the electoral campaign and election day. In Recognizing the importance of the 2011 elections the months prior to the election, HRH staff worked for solidifying democracy in the DRC, and at the with CEJP to build capacity among their project invitation of the electoral commission (CENI), the staff and trainers to conduct two waves of cascade

9 The Carter Center 2011 Elections in the Democratic Republic of the Congo

training for 300 domestic long-term observers. In the After establishing the international observation weeks prior to election day, these domestic long-term mission in Kinshasa, 10 long-term observers arrived observers trained some 6,000 observers for polling day Aug. 8–9, 2011, and received orientation prior to observation across the country. Observation results their deployment. Different topics were presented to were collected via coded short message service (SMS) observers to remind them of international observation messages sent to the CEJP/Carter Center data center principles and the code of conduct, as well as inter- in Kinshasa in the hours and days that followed national standards concerning elections. Legal and poll opening, allowing for the rapid collection of political analysts participated in the training to famil- results — the first operation of its kind for domestic iarize observers with the national legal framework and observation networks in the DRC. The CEJP’s sepa- to inform on recent political events. rate findings were released in two statements and a The Center’s LTOs represented nine nationali- comprehensive report following the elections. For ties from the Americas, Europe, and Africa. They further information regarding CEJP’s observations were divided into pairs to form five teams of LTOs of the presidential and legislative elections, please deployed in seven provinces. North and South Kivu visit www.cejp-rdc.org. and Kinshasa and Bas Congo each was covered by one team with other teams deployed to Kasai Election Observation Methodology Oriental, Oriental, and Katanga provinces. LTOs were deployed on Aug. 15, 2011, and Electoral observation involves the collection of the Center was the only international observation information from the electoral process and its evalu- mission on the ground at that time. The observers’ ation against international standards. The Carter principal responsibility was to follow the electoral Center deployed a pre-election assessment mission to process through contacts with all electoral actors. the DRC in April 2011 and established an interna- LTOs conducted regular tional election observa- meetings with the CENI, tion mission office in political parties, civil Kinshasa in August. The society, and relevant Center deployed long- departments of United term observers (LTOs) to The Carter Center deployed a pre-election Nations Organization assess the election prepa- assessment mission to the DRC in April Stabilization Mission rations during the four- 2011 and established an international in the Democratic month period preceding Republic of the Congo election day. On elec- election observation mission office in (MONUSCO), which tion day, observers were Kinshasa in August. was in charge of tech- responsible for observing nical support to the the opening in at least CENI. Observers were one polling station, also in contact with the voting operations in at general population to understand its interest and least 10 polling stations, and the closure and counting involvement in the electoral process. of ballots in one polling station. Observers completed On Sept. 30, 2011, a second group of long-term forms with questions relating to implementation of observers joined the LTOs who had been on the voting and counting procedures. The mission set up a ground for the previous six weeks. An orientation was telephone call center in Kinshasa to collect data from organized for the new observers, which included a observers in order to assess the electoral process.

10 The Carter Center 2011 Elections in the Democratic Republic of the Congo

debriefing for LTOs returning from the field in order a one-day orientation led by members of the core for them to share their assessment of the electoral team and were deployed two days later to sites in the process to date. After three days of training and interior of the country by MONUSCO flights. A discussion, a deployment plan for the new and orig- second group of STOs joined the mission on Nov. 24, inal observers was implemented. The plan provided 2011, attended orientation, and were deployed by car complete coverage of the country: Kinshasa, Oriental, to sites that were accessible by road from Kinshasa. North, Kivu, South Kivu, Katanga, Kasai Oriental, In total, 70 observers were deployed for the Nov. Kasai Occidental, Bandundu, Equateur, Maniema, 28 elections at the following sites: Kinshasa (Limite, and Bas Congo. Kalamu, Ngaliema, Gombe, Masina, and Nsele); Carter Center observers reported on current Bas Congo (Matadi, Muanda); Oriental Province events in the electoral process each week through a (Kisangani, Bunia, Isiro); Katanga (Lubumbashi, written report, covering the following topics: political Kalemie, Kolwezi); North Kivu (Beni, Goma); environment; electoral administration; the electoral South Kivu (Bukavu, Walungu); Maniema (Kindu); campaign; voter educa- Kasai Oriental (Mbuji tion; civil society; the role Mayi, Kabinda, Mweni- of women in the political Ditu); Kasai Occidental process; and pre-election, (Mweka, Tshikapa); election-day, and post- On election day, both long- and Bandundu (Bandundu election security. LTOs short-term observers reported to the core ville, Kikwit); and also exchanged informa- team by completing observation forms with Equateur (Mbandaka, tion with other domestic Gemena, Bikoro).4 LTOs and international questions concerning the opening, voting, prepared a regional report observers as they arrived and closing procedures at polling stations. in advance for each team in their deployment areas. of short-term observers Shortly before elec- arriving in their areas tion day, 40 short-term of responsibility. Short- observers representing 27 countries joined the term observers had a briefing session with long-term mission. Their principal responsibilities were to observers in provincial capitals before arriving at their observe the last days of the electoral campaign and final deployment sites in the provinces. observe voting and counting of presidential and legis- On election day, both long- and short-term lative votes until their conclusion. Where possible, observers reported to the core team by completing teams also observed the tabulation of presidential observation forms with questions concerning the votes at the local tabulation centers (CLCR) in their opening, voting, and closing procedures at polling deployment site. stations. A communication plan was elaborated Taking into consideration the complexity of by the core team for effective and timely receipt movement to deployment sites in the interior of of information. the country and wanting to ensure the presence of At several key points during the mission, The observers as long as possible through completion of Carter Center published public statements to inform tabulation of presidential ballots, the Center made national and international opinion on the work of the a strategic decision to deploy short-term observers mission and its observations of the process:5 in two phases. Accordingly, a first group of STOs arrived in Kinshasa on Nov. 18, 2011. They attended 4 See Appendices for deployment map. 5 See Appendices for copies of these statements.

11 The Carter Center 2011 Elections in the Democratic Republic of the Congo

1. Press Release of Aug. 17, 2011: Announcing the 6. Statement of Feb. 23, 2012: Democratic Republic Establishment of the International Observation of the Congo Legislative Election Results Mission of The Carter Center Compromised 2. Statement of Oct. 17, 2011: First Pre-electoral The international observation missions of The Statement of The Carter Center on Preparations Carter Center conduct their work in accordance for the DRC Elections with the Declaration of Principles for International Observation of Elections and Code of Conduct for 3. Press Release of Nov. 22, 2011: Announcement of International Election Observers, adopted at the Carter Center Heads of Mission Former President United Nations in 2005 and signed by 37 observation of Zambia, His Excellency Mr. Rupiah Banda, and organizations. The Center evaluates the electoral Vice President of Peace Programs at The Carter process based on the DRC’s national legal framework Center, Dr. John Stremlau and its obligations for democratic elections in inter- 4. Statement of Nov. 30, 2011: Preliminary national and regional agreements. Postelection Statement After a seven-month presence in the DRC, The 5. Statement of Dec. 10, 2011: Postelection Carter Center concluded its observation mission by Statement on the Presidential Results and publishing this final report with the Center’s find- Tabulation Process ings and analysis on the electoral process, as well as recommendations to various stakeholders.

12 The Carter Center

Historical and Political Background

he DRC covers almost 2.3 million square kilo- endowed with legal capacity. It is a unitary state meters, which is the equivalent of 33 times with a president as head of the executive branch Tthe size of Belgium, the Netherlands, and elected by direct universal suffrage, a bicameral Luxembourg together, or four Parliament composed of a times the size of France, or one- National Assembly elected by quarter the size of the United direct universal suffrage, and a States. Landlocked in central Because of its size and Senate elected by indirect vote. Africa, except for a small coast enormous wealth, the DRC The government is responsible bordering the Atlantic Ocean, has long attracted the greed to Parliament, and the inde- it is the second largest country pendence of the judiciary is in Africa. Because of its size of its regional neighbors and guaranteed by the constitution. and enormous wealth, the DRC international powers. The 2006 constitution organizes has long attracted the greed of the judicial institutions in three its regional neighbors and inter- divisions under the respective national powers. control of the Court of Appeal (or Cassation), the The administrative structure of the DRC consists Council of State, and the Constitutional Court. of the city-province of Kinshasa and 10 provinces However, these three divisions have not yet been installed, and their duties are assumed by the Supreme Table 1: Statistics Court of Justice. Political pluralism is enshrined in the constitution, which punishes as high treason Full name Democratic Republic of the Congo the institution of a one-party system. Treaties and Polling 63,865 (CENI, 2011) international agreements have superior authority over stations national laws, under reserve for every treaty or agree- Capital Kinshasa ment of its application by the other party. Registered In December 1990, under international pressure 32,024,640 (CENI, 2011) voters and after several years of resisting, then Zaire President Mobutu Sese Seko accepted the principle Area 2.34 million sq km (905,354 sq miles) of a multiparty system and asserted his intent to Political 428 (registered as of Nov. 23, 2011) return the country to competitive elections. Recurring parties political unrest prevented the promised democratiza- Population 67.7 million (U.N., 2011) tion from coming to fruition Official French, Lingala, Kiswahili, Kikongo, In March 1997, Désiré Kabila led an armed march languages Tshiluba on Kinshasa. Efforts by the Alliance of Democratic Forces for the Liberation of Congo (AFDL) and Major Christianity, Islam religions support by neighboring countries brought Kabila to power and forced Mobutu from his position. The Life 47 years (men), 51 years (women) absence of elections, coupled with the appointment expectancy (U.N.) of provisional governors by the central power under Main Diamonds, copper, coffee, cobalt, Kabila, brought an end to the hope of free elections exports crude oil, coltan under the new regime. Kabila was assassinated in

13 The Carter Center 2011 Elections in the Democratic Republic of the Congo

2001. After a few days of confusion and tension in the presidential election (receiving 58 percent of surrounding his death, the temporary Parliament votes in the runoff) over Vice President Jean Pierre chose to proclaim Major-General Joseph Kabila, Bemba. Kabila was inaugurated on Dec. 6, 2006. The the elder son of the late president, as president of presidential coalition Alliance for the Presidential the Republic on Jan. 24, 2001. This 29-year-old Majority (AMP) and its allies, including the Unified newcomer to politics inherited a country divided into Lumumbist Party (PALU), formed a majority in the three occupied and decentralized zones. National Assembly and the Senate. PALU leader On Dec. 17, 2002, after long negotiations under Antoine Gizenga was appointed prime minister, and the mediation of South African President Thabo Léon Kengo wa Dondo of the opposition was elected Mbeki, a global and inclusive transition agreement president of the Senate in May 2007. was signed in Pretoria. According to this agreement, After the resignation of Prime Minister Gizenga all parties were to commit to a democratic transition on Sept. 25, 2008, and his replacement by Adolphe that would end with the organization of presidential Muzito (also a member of PALU), a new government and legislative elections within two years. The agree- was established on Oct. 27, 2008. During subse- ment contained conditions for demilitarization of quent government reshuffles in February 2010 and rebel groups and the formation of a government of September 2011, Prime Minister Muzito remained transition. According to this agreement, all foreign in his position. troops were to withdraw from the DRC, and all mili- The Nov. 28, 2011, elections took place in a very tias were to be disarmed. It was in respect for these different political climate from 2006. In 2006, the agreements that President Joseph Kabila promulgated political stakes involved placing the country on the the interim constitution on April 4, 2003, and he path of democracy after a long period of dictatorship took the oath of office on April 7, 2003, before the and years of conflict. In the first pluralistic elections Supreme Court of Justice (CSJ). Government power since independence, Tshisekedi’s UDPS chose to was shared between the president of the republic and boycott voter registration and presidential and legisla- four vice presidents, who were selected among the tive elections, counting on the failure of an electoral parties to the peace agreement. process under the supervision of the international The government of national unity, formed on June community. The two-round presidential elections 30, 2003, was responsible for implementing an elec- included 11 candidates, ranging from well-known toral process, with a constitutional referendum that personalities from the political class to unknown would take place Dec. 18–19, 2005, followed by the presidential elections and general election in July and October 2006. The government was also charged with

restoring state authority over all provinces to counter Myriam Asmani the activities of belligerent parties, which had divided up their administrative and military control according to their alliances and economic interests. With the organization of the constitutional referendum and the presidential, legislative, and provincial elections (July 30 and Oct. 29, 2006), the transition process was coming to an end. The 2006 elections were marked by a high level of voter participation (65 percent) despite the boycott of long- time opposition leader Etienne Tshisekedi and his These voting booths and ballot boxes for the legislative and presidential elections were set up in a Kinshasa polling station. supporters. Incumbent Joseph Kabila was victorious 14 The Carter Center 2011 Elections in the Democratic Republic of the Congo Laura Curtis

Boxes of voting materials were stored in a CENI warehouse in Kananga, Kasai Occidental province. actors competing as outsiders with an untarnished over the ability of the commission to respect the past. Five years later, the political situation was constitutional deadline to hold the elections before very different, with Tshisekedi participating as a Dec. 6. Opposition candidates played on the concern presidential candidate and a newly established elec- that any delay in the elections could open the door tion commission assuming full control of the organ­ to legal complaints concerning the legitimacy of the ization of presidential, sitting president despite legislative, provincial, Article 70 of the constitu- and local elections. tion, which states: “At the The objective of The two-round presidential elections end of his mandate, the the PPRD in 2011 was included 11 candidates, ranging from President of the Republic to obtain a legislative well-known personalities from the political remains in office until the majority allowing it to installation of the new govern on its own, but class to unknown actors competing as elected President.” Some doing so proved to be a outsiders with an untarnished past. political commentators major challenge consid- believed that opposition ering that the number of figures eagerly plied the candidates had doubled since the 2006 election. CENI with criticisms in the hope that through a Uncertainty about the CENI capacity to organize delay in the elections, they could make political the elections by Nov. 28 weighed heavily throughout gain through a negotiated solution. No doubt such the pre-election period and figured prominently in political pressures contributed to the CENI’s organi- the election campaign. The mismanagement of ballot zational challenges, though ultimately it remained the box and ballot paper acquisition reinforced doubts body responsible for the conduct of the elections.

15 The Carter Center

Electoral Institutions and Legal Framework for the Presidential and Legislative Elections

ffective electoral institutions and a sound legal the strengths and weaknesses of an electoral process, framework are essential to ensuring that a and offer a clear basis for impartial analysis. country upholds its international obligations, E Constitution including but not limited to conducting periodic gen- uine elections that accurately reflect the will of the The constitution and electoral law are the central people for democratic elections.6 elements of the electoral framework. The DRC’s constitution gives important consideration to human Legal Framework rights and fundamental liberties. The principal rights and liberties relating to elections are the freedoms of The DRC has ratified a number of international meeting, assembly, speech, association, and move- treaties through which the country made a commit- ment; the principle of nondiscrimination; the right ment to respect key standards of human rights (see of participation; and the rights to safety and to a free Table 2). and fair trial.8 According to the DRC The constitution recog- Constitution, “treaties and nizes political pluralism and international agreements prohibits the establishment regularly concluded have, According to the DRC Constitution, of a single party with a from their ratification, penalty of high treason.9 an authority superior to “treaties and international agreements A political opposition is 7 that of [national] laws.” regularly concluded have, from their recognized and its rights Consequently, international ratification, an authority superior to protected, providing its standards on elections that of [national] laws.” respect of the constitution encompassed in these trea- and the law. Specific laws ties are of direct application govern the organization and have authority superior and functioning of political to any national laws in the parties, the status of political opposition, and political event of contradiction. The DRC’s responsibility party finances.10 However this last law specifies in its to meet these obligations is clearly established final article that it does not apply to 2011 elections. through the voluntary initiative by the Congolese The absence of public financing of political parties government in such international instruments so as disadvantages smaller parties and does not favor to ensure citizens are able to participate in genuine democratic elections. These international standards, derived from a 6 International Covenant on Civil and Political Rights (ICCPR), Article 25(b); Universal Declaration of Human Rights (UDHR), Article 21 country’s national legal framework and international 7 Article 214 of the constitution commitments for democratic elections, provide criteria that The Carter Center has used to assess the 8 Articles 5–37 of the constitution quality of the 2011 elections in the DRC. Reference 9 Article 7 of the constitution to international standards allows observers to assess 10 Political parties: Law 04/002 of March 15, 2004; status of political opposition: Law 07/008 of Dec. 4, 2007; and political party finance: Law how well a country is meeting its obligations, identify 08/005 of June 10, 2008

16 The Carter Center 2011 Elections in the Democratic Republic of the Congo

Table 2: International Standards

International Standards From These Treaties Are Applicable Under the Congolese Legal System

✓ International Covenant on Civil and Political Rights ✓ Convention on the Elimination of Racial Discrimination ✓ International Covenant on Economic, Social, and Cultural Rights ✓ Convention on the Political Rights of Women ✓ Convention on the Rights of the Child ✓ Vienna Convention on the Law of Treaties ✓ African Charter on Human and Peoples’ Rights ✓ Protocol to the African Charter on Human and People's Rights on the Rights of Women in Africa ✓ African Union Convention on Preventing and Combating Corruption ✓ African Charter on Democracy, Elections, and Governance ✓ SADC Protocol Against Corruption

transparency in the financing of parties and election the amendment was considered most favorable to campaigns, for which accounts are not made public President Kabila, who had won the largest proportion at any time. of votes in the first round of the presidential election The existence of 417 political parties registered of 2006. with the Ministry of the Interior demonstrates the Some sources that serve as evidence of state reality of political pluralism in the DRC. However, practice indicate that no substantial change to the this magnitude of so many (often small) political electoral law should be made within six months of an parties reflects a very fragmented electorate. Many election without the consent of a majority of political parties also appear to lack internal democracy and/ actors.12 Although the DRC’s constitutional amend- or are organized around an individual. Ideological ment occurred at the start of 2011, better consulta- or issue-based differences among parties are all the tion with civil society and political parties for such a more difficult to identify, as many parties lack a clear fundamental modification of the presidential electoral description of their views. Some commentators note system would have strengthened public confidence in that parties more often reflect various identities such the elections and the CENI. as region, clan, or language than other considerations. During the presidential election of 2006, Article 11 Consistent with the Electoral Commissions Forum of South African 71 of the constitution provided that, “the President Development Community (SADC), “The electoral system should be entrenched in the constitution. The form, content and operation of of the Republic is elected by direct universal suffrage the adopted system should be elaborated in the electoral act.” See in a majority vote in two rounds for a five-year also, United Nations Human Rights Committee (UNHRC), General 11 Comment 25, para. 21: “Although the Covenant does not impose any term renewable only once.” On Jan. 25, 2011, particular electoral system, any system operating in a State party must be the National Assembly and Senate amended this compatible with the rights protected by Article 25 and must guarantee and give effect to the free expression of the will of the electors. The article to change the presidential voting system principle of one person, one vote, must apply, and within the framework from a majority basis to a single round plurality elec- of each State’s electoral system, the vote of one elector should be equal to the vote of another.” tion. Though the constitutional amendment was 12 See, for example, Economic Community of West African States supported by opposition members in Parliament, (ECOWAS), Protocol on Democratic and Good Governance, Article 2

17 The Carter Center 2011 Elections in the Democratic Republic of the Congo

Participation of Women, Minorities, and “woman has to obtain the authorization of her Marginalized Groups husband for all legal acts in which she obliges herself State obligations to promote equality for women to a service.”18 Although some measures exist in the derive, in part, from political obligations regarding law to encourage participation of women in govern- absence of discrimination and the right of all citizens ment and respect of their rights, the government has to participate in the public affairs of their country yet to establish a coherent policy and legal framework regardless of gender.13 regarding the place of women in society. For example, The DRC Constitution guarantees equality for the law on public finance of political parties states all Congolese and equal protection under the law.14 that to benefit from state subsidies, any political Public authorities are responsible for ensuring the party must “take into account the parity men/women elimination of any form of discrimination against during the establishment of party lists,” but as noted women by insuring the protection and promotion of above, this law has yet to be enacted.19 the rights of women.15 Concerning political represen- The constitution guarantees equal access to tation of women, the constitution establishes a “right public resources regardless of ethnicity, tribe, or to fair representation within the national, provincial, cultural minority.20 About 250 ethnic groups and 700 and local institutions. The state guarantees the imple- languages and dialects exist in the DRC. The U.N. mentation of the parity between genders in aforemen- High Commissioner for Human Rights has high- tioned institutions.”16 lighted the discrimination of the Pygmy minority in The population’s distribution between men and particular, concerning education, health, and employ- women is relatively equal, but women are far from ment. This included the Batwa of the eastern borders being represented proportionately in Congolese and Bayaka on the border with Congo-Brazzaville and political life. Congolese law still contains provisions the Central African Republic. Their lack of repre- that violate the DRC’s international commitments sentation in public institutions is an example of the and the constitution.17 Under the family code, a effect of discrimination. Electoral System Opposition parties and civil society organizations

John Stremlau regretted the absence of public debate before the constitutional amendment to the presidential elec- toral system from a majority to a plurality of votes.

13 ICCPR, Article 25(a). Not only are states obligated to take steps to prevent discrimination, they must also take the steps necessary to give effect to human rights. ICCPR, Article 2, AU African Court on Human and People’s Rights (AfCHPR), Article 1. This obligation is unqualified and of immediate effect (UNHRC, General Comment 31, para. 14). 14 Article 12 of the constitution 15 Article 14 of the constitution 16 Article 14 of the constitution A woman is proud to hold up her voter registration card outside 17 Article 14 of the constitution a polling station. 18 Article 448 of the family code 19 Article 3 (5) of the law on public finance of political parties 20 Article 13 of the constitution

18 The Carter Center 2011 Elections in the Democratic Republic of the Congo

Although not inconsistent with accept- able norms of the DRC’s international obligations, this modification of the Myriam Asmani voting system prompted a change of political strategy in which the oppo- sition no longer could run for the presidency divided in the first round and build alliances around a common front- runner in the second. With the amend- ment, electoral success by an opposition presidential candidate required advance unity from the very first round. This was anticipated as being very difficult, as personal agendas and the strong person- alities of opposition leaders would play a major role in determining who could be the opposition candidate. Moreover, the These legislative and presidential ballot boxes are in the center of a Kinshasa single round majority system also ran the polling station. risk of having an elected president with only a plurality of votes and perhaps without sufficient legitimacy to assert his authority. Members of Parliament are elected for five years, As for legislative elections, a proposed electoral expiring at the installation of the new assembly.21 law submitted on March 11, 2011, by PPRD National The legislative elections of Nov. 28, 2011, used a Assembly Deputy Tunda Yakasendwe would have mixed voting system.22 In districts with only one reformed the legislative voting system by shifting seat in competition, the vote took place on a simple from a proportional election to a majoritarian party majority basis. The single candidate who obtained list system, which would have allowed a party list the largest number of votes was elected. obtaining an absolute majority of votes to win the In districts with two or more seats, the vote took totality of seats in a district. This voting system would place under the open party list proportional system. have favored the representation of big parties to the This voting system allocates seats according to the detriment of minorities and local parties. At the time number of times the party reaches the electoral quota. of the vote on June 15, 2011, members of Parliament The quota is calculated by the number of total votes rejected the proposition and kept the voting system divided by the number of seats in competition in the used in 2006. The time spent examining the text district. The “largest remainder formula” was used and waging negotiations, under which members of to apportion remaining seats after the initial alloca- Parliament chose to condition their vote, delayed the tion of seats. When voters voted for a candidate on work of the CENI and may have impacted negatively a list, their votes were counted for both the party the organization of the elections. and the candidate. On Aug. 17, 2011, another law was enacted modifying the distribution of seats in the National Assembly. Political parties from districts that lost seats questioned the integrity of figures drawn from 21 Article 117 of the electoral law the voter register, which was suspect in their view. 22 Articles 118 and 119 of the electoral law

19 The Carter Center 2011 Elections in the Democratic Republic of the Congo

In general, the electoral law respects international The electoral law of 2011 contains an additional standards; however, some decisions and additions criterion of candidate eligibility requiring a level of made in 2011 contradict international agreements education or proven work experience. This education/ signed by the DRC. The electoral law contains experience criterion is inconsistent with the right elements of transparency that to stand for elections under are very positive when applied. the international obligations However, noncompliance concerning civil and political with multiple articles in the In general, the electoral rights.23 The provision to electoral law eroded public law respects international exclude from eligibility those confidence in the commission. standards; however, some individuals with a final convic- The CENI failure to meet its tion for the gravest crimes is own deadlines included: decisions and additions made in intended to enhance the image • Article 6 (publication of voter 2011 contradict international of politicians and fight impunity list at least 30 days before agreements signed by the DRC. against criminals trying to start of official campaign benefit from the protection period) of public office (and is consid- ered to be consistent with reasonable restrictions • Article 8 (posting of voter list at respective polling on candidacy). stations at least 30 days before election day) Many members of the Congolese diaspora — • Article 39 (delivery of party witness accreditation citizens abroad with continued economic and social within five days of election day) ties to the country — were deprived of their right • Article 43 (delivery of observer accreditation to vote.24 within seven days of application) Participation of Women, Minorities, and • Article 47 (publication of polling station locations Marginalized Groups 30 days before election day) The electoral law does not allow full application of • Article 56 (final delivery to polling stations of the constitution by allowing de facto limits in the electoral materials 48 hours in advance of polls representation of women: “… every party list is estab- opening) lished by taking into account the equal representation of men and women ... however, the nonrealization of the parity in party lists … is not grounds for inadmis- sibility of the list.”25 This measure also contradicts the DRC’s commitment to reach the threshold of at G. Dubourthoumieu G.

23 ICCPR, Article 25(a) “Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in Article 2 and without unreasonable restrictions: (a) To take part in the conduct of public affairs, directly or through freely chosen representatives;” AU African Charter on Democracy, Elections and Governance, Article 3(7) and SADC, Principles and Guidelines Governing Democratic Elections, para. 2.1.1. See also, UNHRC, General Comment 25, para. 15, which cites education level as an unreasonable restriction. 24 Council of Europe, Code of Good Practice in Electoral Matters, Sec. I.1.1.c, “…the right to vote and to be elected may be accorded to citizens residing abroad.” 25 Article 13 of the electoral law A woman casts her ballot in a polling station.

20 The Carter Center 2011 Elections in the Democratic Republic of the Congo

least 30 percent of women in parliamentary seats by recognized internationally as an effective means of 2005 and does not further the commitment to reach a ensuring genuine democratic elections and that other new objective of 50 percent of women in Parliament international obligations related to the electoral before 2015.26 process can be met.29 Election management includes Nearly half of Congolese registered voters are issues largely related to the professional and impartial women. Unfortunately, no political party presented conduct of election activities by the election manage- a female candidate in the presidential election, ment body, as well as the structure and mandate of compared to four female candidates in the 2006 that body on all levels of administration. elections. It is also regrettable that the percentage The National Independent Electoral Commission of female legislative candidates did not increase from (CENI) is the principal authority supporting 12 percent in 2006 to a greater number in 2011. democracy in the DRC. Article 211 of the DRC In the previous legislature, Constitution entrusts the CENI 8.4 percent of National to assure the electoral process Assembly deputies were female, conforms to the law. Article with 4.6 percent in the Senate. Nearly half of Congolese 2 of the electoral law of June The first two DRC governments registered voters are women. 2011 accords the CENI respon- included four female ministers Unfortunately, no political party sibility for organizing the elec- and five vice ministers. Both presented a female candidate toral process, including voter governments of Prime Minister in the presidential election, registration, voting operations, Muzito included five female vote counting, and tabulation, ministers and four vice minis- compared to four female as well as the announcement of ters. At the provincial level, candidates in the 2006 elections. provisional results. no woman occupies a governor The CENI was established or deputy governor post. Three on Feb. 26, 2011, replacing women were members of the CENI’s top leadership. the Independent Electoral Commission (CEI) that Few other measures are taken to encourage the organized the presidential, legislative, and provincial participation of women in politics, and those that are elections in 2006. The designation of members of either are optional or not respected. The DRC should the CENI leadership was debated within Parliament undertake clear steps to meet its international obliga- before arriving at the final composition of four tions in this regard.27 members representing the majority party and three The electoral law guarantees in a general way the members from the political opposition. Pastor Ngoy electoral rights of displaced people.28 Nevertheless, Mulunda was designated as the CENI president. The no indication exists of measures taken to guarantee absence of civil society representation within the the exercise of the right to vote by these populations CENI leadership generated criticism. during the 2006 or 2011 elections. According to the UNHCR, there are approximately 1.5 million 26 SADC, Declaration on Gender and Development, 1997 and Protocol internally displaced people (IDPs) in the country, in on Gender and Development, 2008 particular in Katanga, Oriental province, and North 27 Women’s rights in the DRC are supported by many international obligations, including U.N. Convention on the Elimination of All Forms and South Kivu. of Discrimination Against Women, Article 1; African Union (AU) African Charter on Human and People’s Rights, Article 2; and AU Protocol to the African Charter on Human and People’s Rights on the Election Management Rights of Women in Africa, Article 2(a) An independent and impartial electoral authority 28 Article 5 of the electoral law that functions transparently and professionally is 29 UNHCR, General Comment 25, para. 20

21 The Carter Center 2011 Elections in the Democratic Republic of the Congo

of the annexes to the electoral law that apportioned parliamentary seats per district.

Laura Curtis These delays required the CENI to modify its calendar on Aug. 18, 2011, just three months before election day. Table 3 illustrates the commission’s performance record against key deadlines.

Election Assistance On June 5, 2010, Prime Minister Muzito confirmed his government’s request for elec- toral assistance from the United Nations to support the organization of presidential and legislative elections in 2011 and provincial and local elections in 2012. The United Nations Organization Stabilization Mission in the Democratic Republic of the Congo Carter Center long-term observer Curtis Palmer (left) meets with a CENI (MONUSCO) provided support for the official in Kananga, Kasai Occidental province. elections through technical assistance, logis- tical assistance, and support to the CENI for facilitating dialogue with various actors. The CENI head office provides overall political MONUSCO electoral division was in charge of management and national coordination with provin- technical assistance. Since 2007, the Support Project cial executive secretaries (SEPs) and heads of offices for the Electoral Commission (PACE) of UNDP at the local level. The has managed funds management struc- allocated by donors ture that the CENI and provided support inherited from the The United Nations Organization Stabilization for budget and human CEI was not changed Mission in the Democratic Republic of the resource questions. significantly. PACE also manages An electoral Congo (MONUSCO) provided support for the funds for supporting the calendar was published elections through technical assistance, logistical operational capacity of on April 30, 2011, for assistance, and support to the CENI for the CENI. the organization of the facilitating dialogue with various actors. Candidate Nomination presidential, legislative, provincial, and local After the adoption elections. This calendar of the annexes to the was the result of a political compromise realized after electoral law on Aug. 17, 2011, the election commis- a workshop in Lubumbashi during consultations with sion opened candidate registration centers (BRTCs) the opposition and other political actors. Meeting in each electoral district. The provisional list of 11 calendar deadlines proved to be a consistent chal- candidates for the presidential election was published lenge for the election commission, starting with on Sept. 15. the revision of the voter list and the late adoption

22 The Carter Center 2011 Elections in the Democratic Republic of the Congo

Table 3: Target Dates Target Date(s) Actual Target Activity May 2011 Date of Date CENI Calendar Completion Met? Revision of electoral register April 2–June 30 July 19 NO Packaging and sending of “nonsensitive materiel” (ballot boxes, July 1–Sept. 18 Nov. 3 NO voting booths, etc) Process disputes to the electoral register July 1–July 7 July 17 NO Passing of appendices to redistricting law July 23–July 27 Aug. 13 NO Promulgation of appendices to redistricting law July 28–Aug. 8 Aug. 17 NO Reception and processing of candidates for presidential and Aug. 4–6, Sept. 6 Sept. 12 NO legislative elections Printing and mailing of electoral register Sept. 6–Oct. 9 October NO Publication of preliminary list of candidates for presidential and Sept. 7 Sept. 12 NO legislative elections Publication of final list of candidates for presidential and Sept. 17 Sept. 23 NO legislative elections Ordering and production of ballots for presidential and Sept. 18–Oct. 21 Nov. 28 NO legislative elections Packaging and sending of “sensitive materials” (ballots and Oct. 22–Nov. 15 Nov. 28 NO voter lists) Campaign period for presidential and legislative elections Oct. 28–Nov. 26 Nov. 26 • Training of polling workers and preparations of materials at Nov. 28– Nov. 23–Nov. 28 NO polling stations Nov. 30 Election day Nov. 28 Nov. 28 • Compilation and tabulation of results Nov. 29–Jan. 12 Feb. 7 NO Announcement of provisional presidential results Dec. 6 Dec. 6 • Processing of disputes to results at the Supreme Court Dec. 7–16 Dec. 16 • Announcement of final results from presidential elections Dec. 17 Dec. 17 • Inauguration of the president Dec. 20 Dec. 20 • Announcement of provisional results for the legislative elections Jan. 13 Feb. 7 NO

A very high number of individuals sought candi- position, the CENI should be recognized for its great date nomination for the legislative elections. On effort to process all of the applications in a short time. Sept. 26, the CENI announced receipt of 19,006 Ballot Paper Design candidates (18,386 qualified) for the 500 seats in the National Assembly. Given this volume of applications With a final list of 11 presidential candidates and and unprecedented interest in the national deputy 18,386 legislative candidates, the CENI had the task

23 The Carter Center 2011 Elections in the Democratic Republic of the Congo

of handling a multipage ballot in several districts. and perceived to have engaged in fraud to benefit The design, printing, and distribution of ballots with certain candidates.30 large numbers of candidates, as well as procurement of Election Materials ballot boxes that could accommodate the size of the ballots, created additional challenges for the CENI. The timely procurement and delivery of electoral material faced several challenges. The logistics Polling Station Location plan prepared by the CENI and MONUSCO was The CENI sent agents throughout the 11 provinces revised on several occasions after delays linked to of the DRC to identify the purchase of materials polling station locations and the short time frame and recruit workers to remaining for deployment staff these polling stations. in advance of the elec- This assessment took place tion.31 MONUSCO flight over approximately two After conducting related observation for capacity was limited, and weeks, and the commis- verification of that information, Carter the multiple logistical prob- sion published the map of Center observers found there was a lems in the CENI procure- polling stations, as required shortage of polling stations in voting ment almost threatened the under the electoral law. election date. The timely Opposition parties raised centers but there were no fictitious delivery of sensitive election questions concerning locations for voting centers. material, namely the ballots the accuracy of the map and voter lists, proved a published by the CENI, particularly important chal- which listed 63,865 polling lenge. Ballots were printed stations. Opposition parties, in South Africa, and the notably UDPS, said that several polling stations South African military delivered the ballots directly on the list were incorrect and some were fictitious. to each of the 16 primary deployment sites in the UDPS shared its list of fictitious polling stations in DRC. As this measure alone could not ensure delivery Kinshasa with The Carter Center. After conducting to the 63,865 polling stations, neighboring countries, related observation for verification of that informa- in particular Angola and the Republic of Congo, tion, Carter Center observers found there was a assisted with deployment by helicopter. shortage of polling stations in voting centers but there The CENI president, Ngoy Mulunda, consistently were no fictitious locations for voting centers. reaffirmed his commitment to hold the elections on Schools were given priority as sites of polling time despite the mounting technical and logistical stations, and the CENI favored the staff already difficulties as Nov. 28 approached. In its statement of working at those schools, along with poll workers Oct. 17, 2011, The Carter Center shared its concerns from the 2006 election, in their selection of poll 30 Random interviews by Carter Center observers with several CLCR workers. The process of recruitment of agents as well workers revealed that they were hired at the last minute and received little or no training. Though unscientific, these anecdotes are troubling. as the choice of polling station sites were not done CENI may be able to determine if the many problems encountered in in consultation with local or national stakeholders. tabulation are attributable to problems in recruitment and training and/or partisan interference. The CENI recruitment of the local tabulation center 31 The scheduling of an election must allow sufficient time to successfully (CLCR) workers for vote tabulation was criticized implement necessary components of the electoral process: “Each time by opposition parties and even by some commission elections are scheduled, the dates set out in the calendar for each phase of the process must allow adequate time for … the necessary … logistic members. Some CLCR workers were accused of arrangements to be made.” U.N. Human Rights and Elections, para. 7 arrangements with political candidates and parties

24 The Carter Center 2011 Elections in the Democratic Republic of the Congo

ballot boxes and the processing of the large number of legislative candidates.33

John Stremlau On Sept. 23, 2011, the CENI began transferring executive provincial secretaries (SEP) to new locations and created the additional post of deputy SEP. This change in composition of the CENI management compromised the preparations for election day by putting in place new provincial leadership during a critical period, only nine weeks before election day, while the sensitive work identifying polling stations and recruitment of electoral agents was already in process.

Public Communication

Ballots arrived late to a polling station in Lubumbashi. The election commission held weekly press conferences that allowed it to inform the Congolese public on election preparations. This measure alone could not succeed in on the feasibility of satisfactory organization of the compensating for a general lack of information on the elections on Nov. 28 and recommended the CENI electoral process. A communication plan to dissemi- prepare a contingency plan in the event the elections nate information on the work of the CENI and its were postponed.32 The CENI cited the fragile post- partners should have been elaborated and imple- conflict context of the DRC and the institutional mented, especially as outreach to opposition parties obligation concerning the end of President Kabila’s who sought to politicize their criticisms of the mandate on Dec. 6, 2011, as grounds to hold the CENI’s actions. elections on Nov. 28 as planned despite logistical Budget and other constraints. It is not clear if the CENI accurately assessed its preparedness to organize the The budget for the 2012–2013 electoral cycle elections on Nov. 28. It is likely a decision to delay included $90 million for the revision of the voter the election by a few days would have allowed the registry, $260 million for the organization of the vote to take place in one day rather than over two to presidential and legislative elections, $170 million three days, as was seen in some parts of the country. It for organization of the provincial elections, and is also possible a delay early in the process would have $226 million for the organization of the local elec- allowed aspects of the electoral process, especially tions. CENI used more than $350 million for the plans for the secure and transparent collection of 32 See Appendix, Carter Center Oct. 17 Statement: “Carter Center Calls election results and ballot boxes and their handling at for Urgent Steps by DRC’s Election Commission to Prepare for Nov. 28 the tabulation centers, to have been better organized. Elections.” The Carter Center and other observation missions, 33 See Appendix, Carter Center Nov. 30 Statement: “The Carter Center Preliminary Statement on the Democratic Republic of the Congo’s both domestic and international, found that electoral Elections.” See also “Message of the CENCO to the Catholics and to preparations for Nov. 28 were made under enormous the Congolese People” (Jan. 16, 2012) and EU-EOM press release: “The Election Observation Mission of the European Union deplores the lack time pressure, especially the deployment of the of transparency and irregularities in the collection, compilation and publication of results,” Dec. 13, 2011.

25 The Carter Center 2011 Elections in the Democratic Republic of the Congo

organization of the presidential and legislative elec- campaign period except for Etienne Tshisekedi, who tions alone (not including the voter registration conditioned his signature to the acceptance by the process from 2010–2011). The procurement of sensi- CENI for an audit of the voter registry. There was tive and nonsensitive material represented the largest no initiative by the CENI for signature of the code expenses for the CENI, due to the cost for transport of conduct for legislative candidates because political of ballot boxes manufactured in China as well as parties also signed on to the code, thus leaving cost associated with the design, out independent legislative printing, and delivery of ballots candidates. in a very short time frame. The The Carter Center recom- Congolese government was mends that the CENI conduct responsible for 70 percent of The process of purchasing a detailed evaluation of the election costs, and the interna- electoral material was not management of the presidential tional community contributed conducted transparently. and legislative elections in order 30 percent (20 percent through to identify lessons learned and United Nations Development prevent similar errors during Program Project to Support the next set of elections. The the Election Commission (UNDP PACE); 7 percent various national and international partners, especially through MONUSCO logistics; and 3 percent from all political parties, should be an integral part of this other partners). evaluation in order to ensure transparency and to The process of purchasing electoral material was increase the credibility the 2011 elections. not conducted transparently. The purchase involved different manufacturers and intermediaries in different Boundary Delimitation countries. The purchase of ballot boxes, which origi- Boundary delimitation must be consistent with a nally was to be done in South Africa and Germany, state’s human rights obligations, ensuring that its was finally completed in China, with the additional commitments to equal and universal suffrage and cost and time of transport delaying distribution. absence of discrimination are met. Although equal Political Party Dialogue suffrage is best achieved by assigning the same MONUSCO and the National Democratic Institute number of voters to each representative, it may be provided support for events relating to engagement achieved through boundary assignment based on 34 with political parties by the CENI. Dialogue between specific apportionment criteria. the CENI and political parties was organized three A modification to the electoral law of February 35 times during a six-month period preceding the 2006 was adopted on Aug. 17, 2011. The revision November election: a July 25 meeting with 275 polit- was promulgated late in the CENI calendar, which 36 ical parties; a Sept. 8 meeting with 200 parties; and originally proposed July 23–27. Ideally, the seat Oct. 26–27 meetings with presidential candidates on allocation would have been published as part of the electoral preparations. June 25, 2011, modification of the 2006 electoral law,

Code of Conduct A code of conduct was published by the CENI to encourage respect of democratic “rules of play,” 34 UNHRC, General Comment 25, para. 21 including the acceptance of final election results by 35 Law pertaining to the succession and partition of electoral conscriptions for the legislative and provincial elections (Law 11/014) political actors. Each of the presidential candidates 36 Calendar of General and Provincial Elections 2011–2013 in the DRC signed this code of conduct by the opening of the (April 29, 2011)

26 The Carter Center 2011 Elections in the Democratic Republic of the Congo

but it was published without the necessary annexes to In the context of the DRC’s post-conflict environ- provide the formula for the seat allocations because ment, it is evident that special care should be taken voter registration was still under way at the time.37 to ensure each aspect of the electoral process is fair, There is no current census data available to be used in fact and in perception, for all political actors as basis for allocation of seats by population, so the and groups. Electoral units with parliamentary seats allocations are determined disproportionate to voters by the number of registered would result in some voters voters.38 The modification being over- or under- was necessary to redistribute In the context of the DRC’s post- represented in the National legislative seats since the conflict environment, it is evident that Assembly. Most provinces previous allocation for the special care should be taken to ensure lost or gained one to three 2006 elections based on seats. voting population changes each aspect of the electoral process is UDPS leader Etienne and to ensure equal repre- fair, in fact and in perception, for all Tshisekedi had asked his sentation among voters. political actors and groups. supporters to boycott the The allocation of parlia- 2005 voter registration mentary seats per province process, so many of his and territory was calcu- supporters registered for lated by the CENI and submitted to the National the first time in 2011. The resulting reallocation Assembly and Senate for adoption.39 The electoral brought an additional four seats to the two Kasai district boundaries remained the same as administra- provinces, where much of his support is concentrated. tive districts, and the 500 National Assembly seats In contrast, the loss of seven seats in Kinshasa prov- were apportioned at the provincial and territorial/ ince (based on a decline in the number of registered municipal levels.40 The formula used to determine voters) generated controversy and was perceived as an seat allocations divides 500 assembly seats by the total effort to limit Tshisekedi support. number of registered voters, for an electoral quotient of 64,049 voters per parliamentary seat. The number of seats allocated to each province is equal to the total number of its registered voters divided by this quotient.

37 Law 11/003 (June 25, 2011) 38 It is common under list proportional representation systems to set electoral boundaries the same as pre-existing administrative boundaries. The adopted law concerns the number of legislators to be elected per single constituency. The total population or the number of registered voters are both recognized means to allocate electoral seats between districts. The last national census was conducted in 1984 and is, therefore, out of date. 39 As designated under Article 147 of the electoral law of 2006 40 Kinshasa is apportioned by province and district.

27 The Carter Center

Pre-Election Developments

Voter Registration Center observers were told by Congolese voters that the distance to reach their nearest voter registration The voter registration process and the establishment center ranged as far as 20 kilometers.46 The need of a complete, current, and accurate voter list are to travel long distances particularly disadvantaged recognized as critical to the right to vote. It should certain categories of voters (e.g., elderly, sick, be made accessible to the broadest pool of citizens women). Women work at home or in the informal possible to ensure sector, at markets or that both universal in the fields, without and equal suffrage are a weekly day off. Extra adequately protected distance augments the as required by the Despite this increase in the number of centers time lost from work DRC’s international and the large number of new voters enrolled, and the burden of commitments.41 civil society groups and political parties expressed traveling pregnant or Law 04/028 of with small children. December 2004 concern to Carter Center observers that eligible Despite such chal- designates the CEI voters were concentrated in rural areas of the lenges uniquely borne (the predecessor of country that the CENI was unable to reach. by women, Congolese CENI) as the institu- female electors demon- tion responsible for strated their strong organization and commitment to participating in the electoral process management of voter registration. CENI’s voter regis- by enrolling in similar proportions to male voters. tration of eligible voters for the 2011–2013 electoral The presence of party witnesses during voter regis- cycle was completed on July 17, 2011.42 An additional tration was permitted though not a requirement of 6,312,088 voters were added to the voter list since voter registration, and few party witnesses, especially the last registration exercise in 2005, in advance of from opposition parties, were reported to have been the constitutional referendum.43 The total number of voters registered by the CENI was 32,024,640. An accurate voter registry is essential for public 41 UNHRC, General Comment 25, para. 11; ICCPR, Article 25(b) 42 The Carter Center’s international observation mission began shortly confidence in both the electoral process and results after the CENI’s revision of the voter registry concluded, and the Center’s of the election. long-term observers conducted meetings across the country with relevant stakeholders in civil society, political parties, and the CENI in order to The CENI set up 10,000 registration centers for offer the following commentary on the process. voter enrollment in 2011, compared to 9,120 centers 43 25,712,552 voters were registered between June and December 2005. in 2005.44 Despite this increase in the number of 44 European Union Election Observation Mission, Final Election Report centers and the large number of new voters enrolled, (Feb. 23, 2007) civil society groups and political parties expressed 45 The International Crisis Group (ICG) referenced use of itinerant concern to Carter Center observers that eligible (mobile) registration centers by the CENI to reach voters in remote parts with conflicting data in its report, “The Electoral Process Seen from the voters were concentrated in rural areas of the country East’ (September 2011). Carter Center observer contacts did not mention that the CENI was unable to reach.45 Consequently, itinerant centers. eligible voters were not enrolled or had to travel 46 Observer meetings in Equateur. “Registration…facilities should be readily accessible to the electorate,” Norwegian Helsinki Committee, long distances to reach registration centers. Carter Human Rights Monitoring, p. 11

28 The Carter Center 2011 Elections in the Democratic Republic of the Congo

enrolled voters, preventing printing of replacement Ahmad Issa voter identification cards. Voter registration materials arrived late to the terri- tory, and CENI lacked vehicles and fuel needed to distribute materials to all of the registration centers located there. Civil society groups also reported that CENI employees at registra- tion centers were not paid for their labor within a reasonable time frame, and as a result a small number of workers exacted payments Voters in Isiro display their voter registration cards. (50 cents to $1.50) before registering voters.48 Civil society groups also told present. Observation of this important aspect of the observers they witnessed first-hand incidents of election would have allowed opposition parties to minors being registered.49 These groups also witnessed have more confidence in the quality of the voter bribes paid to police for applicants to go to the front registry or have specific data upon which to challenge of the registration line. the authenticity of the voter roll. It appears national Congolese civil society groups reported mixed party offices were unable to allocate funds to pay access to registration centers. According to the salaries and/or for deployment of party agents, and International Crisis Group, nongovernmental orga- local party offices and members did not try to observe nizations observed registration in South Kivu, while without this support. in North Kivu, observers from an NGO network Congolese civil society groups and other inde­ were not given national observer accreditation pend­ent domestic observers had a larger presence badges by CENI. A CENI representative in North during the registration process. The human rights Kivu confirmed to Carter Center observers that civil organization African Association for the Defense of society groups (as well as political parties) did not Human Rights (ASADHO), observed registration have monitors in North Kivu but did not attribute activities in six of 11 provinces and published a report this to a lack of accreditation. in August 2011. The findings in ASADHO’s report are similar to information provided to Carter Center 47 This was observed most notably in North Kivu, where registration began late due to delay in kit distribution. Despite a 10-day extension for observers by various Congolese civil society groups the province, Carter Center observers were told there was insufficient and other stakeholders. Observers were told registra- time to register all voters. tion centers lacked basic supplies such as computers 48 In September, Carter Center long-term observers in Kinshasa observed CENI workers waiting in line to be paid for their work during the voter and enrollment kits, hindering operations in some registration process. areas.47 In Oriental province, Carter Center observers 49 ASADHO report, p. 10 (Mbuji-Mayi); Carter Center observer were told by CENI workers in Isangi territory that meetings in Kinshasa, Equateur, and Katanga computers were delivered without data for previously

29 The Carter Center 2011 Elections in the Democratic Republic of the Congo

Table 4: Voters by Province Province Registered Voters

Kinshasa 3,287,745 Myriam Asmani Bas-Congo 1,502,939 Bandundu 3,553,322 Équateur 3,960,643 Orientale 3,886,524 Nord-Kivu 3,003,246 Sud-Kivu 2,022,960 Maniema 874,809 Katanga 4,627,302 Kasaï-Or. 2,643,905 Kasaï-Occ. 2,661,245 A CENI official checks a voter’s ID card against the voter list Total 32,024,640 in a polling station.

Nevertheless, opposition parties were vocal in their the voter register contained duplicate names, active- concerns about the preparedness of CENI and the duty military and police, and other ineligible voters.51 integrity of the registration process. They claimed the According to CENI, 119,941 duplicate names were number of voter registration kits was not sufficient removed before finalizing the registry in advance of to meet the demand. Registration kits were shared parliamentary seat allocations. Voters with duplicate between provinces, and parties alleged that CENI names were removed completely from the voter provided privileged distribution to areas considered registry and were unable to vote. Though this effec- favorable to the ruling party. They also raised ques- tively disenfranchised some voters, it was seen as a tions about registration data accuracy, alleging the necessary measure to ensure individuals were not able presence of duplicate names and that minors, non- to vote more than once.52 Congolese nationals, active-duty police, and military In mid-October, civil society and opposition parties registered and obtained voter cards.50 once again called on CENI to make its voter registry Some 78 opposition parties issued a July 26 memo- database, managed by CENI’s National Data Center randum to urge CENI to take into consideration (CNT), available to actors in the electoral process certain needs relating to the organization of demo- for verification.53 Though terms of reference for cratic, transparent, credible, and peaceful elections. an audit of the voter registry were signed by a Opposition parties as well as some national observers did not perceive CENI as an organ independent of 50 Carter Center observers conducted interviews with students and headmasters in Kamina, Katanga province, and found reports of minors the government. Both groups expressed concern about registering in Haut-Lomami territory to be credible. CENI’s lack of engagement with political parties and 51 Duplicate names can result from a technical error or a single voter its lack of transparency in the management of the registering in more than one constituency. The latter type was alleged by UDPS and other opposition parties. electoral process. 52 Three days before the election, CENI decided to allow lists of omitted When the revised electoral law was passed in voters, which means it was possible that a voter whose name was purged August, opposition political parties and civil society from the voter registry was still able to vote in the center listed on his voter ID card(s). groups once again voiced their concerns about the quality of the voter registry data. These groups alleged 53 Communique de Presse No. 34/ASADHO/2011 (Oct. 11, 2011)

30 The Carter Center 2011 Elections in the Democratic Republic of the Congo

representative for the political opposition, CENI and registered in large numbers.59 For this election, there opposition groups were unable to agree on specific were sensitization efforts targeting Pygmies in their conditions under which a two provinces of concentration, review would take place in Katanga (48 percent of Pygmies advance of the elections.54 in the DRC) and Equateur (26 In its public statement of Local authorities confirmed to percent). In Katanga province, Oct. 17, 2011, The Carter authorities reported very high Center recommended CENI observers they told Pygmies that levels of enrollment in Manono, accommodate as many reason- registering was obligatory under Kongolo, and Nyunzu. In able requests as possible from the law in order to encourage Equateur, the local authorities political parties, as an essential high enrollment. in Ingende and Bikoro told confidence-building measure.55 Carter Center observers that Although there is no legal obli- registration in these two territo- gation to provide parties access to the data processing ries was almost 100 percent of eligible voters. center, doing so in advance of provincial and local elections would demonstrate strong commitment on the part of CENI leadership to transparency in 54 Protocole de Collaboration Entre la Commission Electorale Nationale its work.56 Independante et l’Opposition Politique sur les Operations d’Audit du Fichier Electoral (Oct. 18, 2011). The two sides disagreed on the number Participation of Women, Minorities, and of opposition party agents who could be present during an audit conducted by technical experts. Marginalized Groups 55 See Appendix, Carter Center Oct. 17, 2011, Statement: “First Carter State obligations to promote participation of women Center Pre-Election Statement on Preparations in the Democratic derive, in part, from political obligations to permit Republic of Congo” 56 Though Congolese electoral law does not entitle parties access to the women to vote in all elections and public refer- central server — only a published list under Article 6 — international enda and to eliminate discrimination of women in standards of practice expect electoral information to be publicly accessible 57 to reinforce confidence in the work of election officials. See, for example, political life. Congolese female voters enrolled in ICCPR, Article 19(2) and African Union Convention on Preventing large numbers across the DRC. While Carter Center and Combating Corruption, Article 9: “Each State Party shall adopt such legislative and other measures to give effect to the right of access to any observers were told some registration centers imple- information that is required to assist in the fight against corruption and mented measures to accommodate women who were related offences.” pregnant or carrying very small children by permitting 57 “States shall take all appropriate measures to eliminate discrimination against women in the political and public life of the country and, in them to forgo the general line and enter separately, particular, shall ensure women, on equal terms with men, the right: (a) many centers did not privilege this category of voters. to vote in all elections and public referenda and to be eligible for election to all publicly elected bodies; (b) to participate in the formulation of Carter Center observers credit Congolese civil society government policy and the implementation thereof and to hold public groups for voter education efforts on the importance office and perform all public functions at all levels of government; (c) to participate in nongovernmental organizations and associations concerned on voting and information on where to register to with the public and political life of the country.” U.N. Convention on the vote to mobilize women to take part in the elec- Elimination of All Forms of Discrimination Against Women, Article 7 tions.58 These efforts by civil society groups contrib- 58 Congolese NGOs reported they had little funds to undertake activities. See Voter Education section of report. uted to the strong enrollment of women — especially 59 “In compliance with the fundamental obligations laid out in Article promising in the context of cultural and social norms 2 of this Convention, States Parties undertake to prohibit and to that discourage women from involvement in politics eliminate racial discrimination in all its forms and to guarantee the right of everyone… political rights, in particular the right to participate in and voting. elections — to vote and to stand for election — on the basis of universal and equal suffrage, to take part in the Government as well as in the Minority Voter Registration conduct of public affairs at any level and to have equal access to public service.” U.N. International Convention on the Elimination of All Forms Members of the Pygmy minority group were also of Racial Discrimination, Article 5(c); Pygmies comprise 85 percent and 40 percent in those territories respectively.

31 The Carter Center

Pygmies experience various forms of social discrim- residing abroad are not able to register to vote or ination and are harassed by police. Pygmies told vote on election day at the Congolese Embassy in observers they registered to obtain a voter ID card, their country of residence. In the future, CENI may which is frequently asked to be shown by police and consider how best to implement measures to allow other authorities.60 The Pygmies this community to vote in future who spoke with observers in presidential elections. Future Equateur also said they registered election law revisions may because they were told they These centers can be seen consider allowing Congolese would be arrested if they did as an appropriate response citizens abroad the right to not register. Local authorities by CENI to the challenge of register and to vote at their local confirmed to observers they embassy or other facilities. told Pygmies that registering reaching electors in remote was obligatory under the law parts of the country. Voter Education in order to encourage high The voter education process is enrollment.61 Electoral districting integral to the development of based on registered voters provides strong incentive an informed electorate that can properly exercise for parties and local administrators to encourage the right to vote.65 Furthermore, the fulfillment of voter enrollment so territories are allocated as the international obligation of universal suffrage many parliamentary seats as possible. Carter Center is partially dependent on access to information observers in Equateur and Katanga reported that and education regarding fundamental freedoms.66 Pygmy communities did not feel engaged in the Adequate voter education fosters greater participation political process — they registered for other reasons in the electoral process by citizens. Full participation — indicating a lack of candidates or parties who of electors is necessary for representative govern- would represent Pygmy interests and help improve ment, and voter education is especially important their situation.62 in contexts where citizens have not received civic Mobile Voter Registration and Overseas Voting education in school. The well-known infrastructure limitations of the 60 The voter ID card serves as the only national identification card for DRC may justify additional emphasis on the use of those without a driver’s license or passport. 63 mobile voter registration centers. An International 61 Article 4 of the 2004 registration law says that registration is a “civic Crises Group (ICG) report referenced at least 511 obligation” but does not criminalize citizens who do not register or vote. “itinerant centers” were used in the East, although 62 Observers in Equateur and Katanga learned of only one Pygmy this figure was challenged by civil society groups. legislative candidate, in Mbandaka with the ADECO party. These centers can be seen as an appropriate response 63 Such a model was used by Lawyers Without Borders to establish mobile courts (audiences foraines) to increase access to justice in parts of eastern by CENI to the challenge of reaching electors in DRC, where local courts were not operational. remote parts of the country. Although voters may 64 The right to vote is not absolute and may be subject to various still need to travel to reach polling stations on elec- restrictions. However, many countries have introduced provisions for overseas voting. tion day, voter registration data would be more 65 African Charter on Human and People’s Rights (ACHPR), Article 13 accurate to inform both apportioning of legislative 66 “Everyone has the right, individually and in association with others: seats and the selection of locations for polling (a) To know, seek, obtain, receive and hold information about all human stations on election day. rights and fundamental freedoms, including having access to information as to how those rights and freedoms are given effect in domestic Under Congolese law, there is no provision for legislative, judicial or administrative systems.” U.N. Declaration on the absentee registration or voting.64 Congolese citizens Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, Article 6(a)

32 The Carter Center 2011 Elections in the Democratic Republic of the Congo

CENI is responsible for coordinating civic educa- information and demonstrate voting with a sample tion.67 CENI undertook few activities itself to inform ballot. This promising initiative, however, was not and educate voters, although CENI staff participated implemented due to funding problems and related in events led by MONUSCO and NGOs. In many contract disputes. Some ARS contracts were finalized provinces, governors and mayors contributed to voter in late November, so these agents may be positioned education. CENI officials gave two related responses to execute this project in advance of provincial and to Carter Center observers when discussing voter local elections. education for this electoral period. Executive provin- Carter Center observers found shortcomings cial secretariats (SEP) told observers that CENI was in CENI’s efforts to coordinate voter education. not responsible for implementing civic education For example, distribution of voter education supplies events; rather its role was to coordinate the efforts of by CENI offices to local NGOs was described as civil society groups, and CENI unsystematic and disorga- wanted to organize civic nized. UNDP’s PACE project education activities directly published posters and other 68 but did not have funds. Carter Center observers found educational materials in As emphasized by CENI, various local languages, with the principal actor in voter shortcomings in CENI’s efforts to pictures, to reach as many education was civil society. coordinate voter education. voters as possible. Observers Congolese civil society groups reported there appeared to told Carter Center observers be no system in place by they were eager to reprise the CENI to screen NGO important role they played in 2006 in advance of recipients in advance of distribution of these sensi­ elections, but international donors for the most part tization materials. As the majority of civil society were not directing funds to their groups.69 Congolese groups lacked funds necessary to implement the NGOs organized civic education events; however, educational initiatives they prepared, it is not clear the impact of their work, by their own estimation, that CENI materials reached those groups that were was on a much smaller scale than in 2006 due to the most capable in terms of financial resources of limited frequency and geographic coverage of their leading education activities. activities. NGOs reported that one significant differ- ence between 2006 and 2011 was that they simply 67 CENI’s governing document (July 2011): “Election matters, including the establishment of a program of information and awareness for voters in could not reach the base of Congolese voters who live French and other national languages.” Law 10/013 creating CENI has the outside large, urban areas. Carter Center observers same text under Article 9(7). confirmed the limited reach of civic education efforts, 68 Maniema, Equateur, Bas Congo SEP offices. In Equateur, observers were told there was no dedicated funding but the office would find a way 70 especially outside city centers. to undertake activities nonetheless. CENI reported at a press conference CENI tried to address the difficulty of commu- in late September that it lacked funding to implement voter education. IRI in its pre-election assessment report said the DRC government does nicating with voters in remote areas by appointing not have a budget for civic education (as of July 2011), p. 4. Information Relay Agents (ARS). The ARS were to 69 Exceptions include international NGO IFES, which managed small implement voter education events at the local level, grants to Congolese NGOs. where most NGO initiatives could not reach. Using 70 “Everyone has the right, individually and in association with others: (a) To know, seek, obtain, receive and hold information about all human creativity to compensate for a lack of resources, agents rights and fundamental freedoms, including having access to information planned to be sent to remote parts of each province as to how those rights and freedoms are given effect in domestic legislative, judicial or administrative systems.” U.N. Declaration on the with motorbikes and megaphones to spread election Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, Article 6(a)

33 The Carter Center 2011 Elections in the Democratic Republic of the Congo

Oct. 21, 2011, marked the official launch of observers the significance of their work when local voter education activities. Throughout the electoral customs sometimes contradict principles of equal period, infrastructure limitations hindered deploy- participation of women and men in public and civic ment of materials, including voter education supplies. life. Traditionally, women have not been encour- Provinces such as Kinshasa and Bas Congo benefited aged to run for office, work on a campaign, or even from more timely receipt of education materials due vote for the candidate of their own choice, though to road systems in place, while observers in the Kasais women’s groups say these attitudes are beginning to and other provinces reported change through their work. that CENI provincial offices had not received voter educa- Candidates and tion material by this date. Initiatives targeted women Parties Carter Center observers on the importance of voting as The DRC’s international found CENI made good use well as more practical aspects, commitments create significant of media to communicate obligations to candidates and information to voters. Public such as where and when to vote political parties, including the access television and radio were and how to mark a ballot. right to be elected and partici- valuable tools used by CENI to pate in public affairs, freedom of inform voters about important expression, freedom of associa- dates in the electoral period and disseminate news tion, and freedom of movement.71 concerning voter and candidate registration. Similar According to the electoral law, CENI is in to the distribution challenges for CENI education charge of receiving and validating applications from materials in the Kasais, weak radio signals in Kasai presidential and legislative candidates. The condi- Occidental limited the reach of this method to tions under which Congolese citizens can apply are educate voters in the province. described in the electoral law for each of the elec- Political parties also contributed to voter educa- tions.72 The major elements added to pre-existing tion, but efforts were generally linked to information criteria from 2006 are the possession of a “graduate” about particular parties and candidates. For example, diploma or five years of work experience in one Carter Center observers in Ilebo, Kasai Occidental, of the domains specified in the law. Elements of attended a UDPS session that prepared women ineligibility concern people who have received a voters for election day by teaching how to spell the criminal sentence without possible appeal for rape, name Tshisekedi, so it could be recognized on the illegal exploitation of natural resources, corruption, presidential ballot. misappropriation of public funds, murder, torture, Participation of Women, Minorities, and or bankruptcy. Marginalized Groups

Women are represented and play an important role 71 The right to be elected is a universal right requiring that states ensure in Congolese civil society organizations, and women’s that their citizens have the opportunity to stand for elected office, free from unreasonable restrictions. All citizens are guaranteed the right of civil society groups took the lead in voter education. equal access to the public services and property of their country; and Carter Center observers remarked that given the any derogation from this right that gives advantage to a particular party or candidate may be considered discriminatory. ICCPR, Article 19(2); limited means, women’s groups are to be credited AfCHPR, Article 13(2). “Everyone shall have the right to freedom of for their dedication and resourcefulness. Initiatives expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in targeted women on the importance of voting as well writing or in print, in the form of art, or through any other media of his as more practical aspects, such as where and when to choice.” ICCPR, Article 19(2) vote and how to mark a ballot. NGOs described to 72 Articles 9, 10, 103, and 120 of the electoral law

34 The Carter Center 2011 Elections in the Democratic Republic of the Congo

Eleven candidates contested the presidential elections of Nov. 28, 2011.

Table 5: Presidential Candidates Myriam Asmani Presidential Candidate Party Adam Bombole Independent Alliance of National Jean Andeka Djamba Congolese Believers Joseph Kabila Independent Union of Forces of Leon Kengo wa Dondo Change Josue Mukendi Kamama Independent Union for the Congolese Vital Kamerhe Nation (UNC) UNC presidential candidate Vital Kamerhe is carried through Union for the Awakening Nicephore Kasese the streets by supporters during his campaign. and Development of Malela Congo (ECT) well-guarded despite different attempts by the opposi- Union for the tion to learn who he supported for the presidency. Oscar Lukumuena Reconstruction of Congo Former Prime Minister Antoine Gizenga, leader of Kashala (RRC) PALU, retired from the political scene while former Francois-Joseph Nzanga Union of Mobutu ally of President Kabila, Vital Kamerhe, a former Mobutu Nganbagawe Democrats president of the National Assembly, presented his candidacy, as well as Leon Kengo, former prime Antipas Mbusa Congolese Rally for minister under Mobutu and outgoing president of the Nyamwisi Democracy Senate. The other candidates ran on behalf of their Union for Development parties or as independents. Etienne Tshisekedi and Social Progress Various attempts to adopt a common strategy (UDPS) and presidential candidate among opposition parties failed. UDPS, through its leader Etienne Among the presidential candidates, Joseph Kabila Tshisekedi, consistently refused to work toward a and Joseph Mobutu Nzanga, sons of past leaders, common strategy, explaining that the people are ran for a second time, along with Oscar Kashala. self-governing, and they will know which candidate Incumbent President Joseph Kabila registered as an to choose in the end. Vital Kamerhe, for his part, independent, with the support of the Presidential said it would not be possible to defeat Kabila without Majority, a coalition of political parties allied with a strategy combining electoral support around the the ruling PPRD party. Etienne Tshisekedi, candidate country from among the various opposition groups. In for UDPS, appeared to have the support of 70 oppo- putting forward competing candidates for the presi- sition political parties. Jean-Pierre Bemba, arrested in dency, the opposition could only rely on a strategy Belgium in 2008 for alleged war crimes committed by of drawing away a sufficient loss of votes for Kabila. his forces in the Central African Republic in 2003, In contrast, President Kabila had the support of a is rumored to have given voting instructions from his coalition united around his sole candidacy and an prison cell in The Hague, but the information was

35 The Carter Center 2011 Elections in the Democratic Republic of the Congo

extremely high number of voters (some 4.6 million) Political parties that presented lists of legislative in his presumed stronghold of Katanga province. The candidates totaled 443 along with 99 independents, inclusion of PALU brought additional support to for a total of 542. Only a dozen of this number could Kabila’s candidacy. claim more or less national representation or at least a Legislative Candidates degree of regional power. More For the legislative elections, There were no female candidates than 130 parties had fewer 18,386 candidates registered to for the presidential elections. than 10 candidates contesting compete for 500 seats in the Only one woman attempted to in these legislative elections. lower chamber of Parliament. present her candidacy, but she Despite the challenges for This very high number of candi- CENI administration of the dates placed a burden on the was unable to pay the $54,000 candidate nomination process organization of the elections and registration fee. given the volume of applicants, made it more difficult for voters The Carter Center found that to choose among candidates. the right to participate in The district of Tshangu in Kinshasa had the highest public affairs and the right to be elected were largely number of candidates — 1,575 candidates competing respected. for only 15 seats. The Tshangu ballot was 57 pages long. Paradoxically, this high number of candidates Participation of Women, Minorities, and may offer less effective choice to voters if they are not Marginalized Groups provided the opportunity to be informed about the There were no female candidates for the presidential candidates in their district or should the ballot prove elections.74 Only one woman attempted to present too complicated for them to manage.73 her candidacy, but she was unable to pay the $54,000 registration fee. Table 6: Candidates by Province For the legislative elections, 2,276 women were registered, representing 12.4 percent of the total Province Registered Seats Candi- Consti- Voters dates t­uencies number of legislative candidates. Sixteen of 169 Kinshasa 3,287,745 51 5,491 4 districts had no female candidate on the ballot. Bas-Congo 1,502,939 23 991 12 These 16 districts each have one National Assembly seat and are located in the interior of the country. Bandundu 3,553,322 55 2,182 20 As described above in the section on the electoral Equateur 3,960,643 62 1,483 27 system, there is no requirement in the electoral law to Province ensure the inclusion of female candidates. In addition, 3,886,524 61 1,277 25 Orientale financing of electoral campaigns is even more difficult Nord-Kivu 3,003,246 47 1,463 9 for female candidates, who generally have fewer Sud-Kivu 2,022,960 32 881 9 financial resources. Maniema 874,809 14 326 8 73 “Reasonable restrictions on persons wishing to become candidates may include…minimum support among voters.” Office for Security and Katanga 4,627,302 72 1,928 25 Cooperation in Europe/Office for Democratic Institutions and Human Rights (OSCE/ODHIT), Domestic Election Observers, p.72. Minimum Kasai threshold levels of support are typically demonstrated by validated 2,643,905 41 1,521 18 Oriental signatures of registered voters. 74 Measures that should be identified, implemented, and monitored for Kasai 2,661,245 42 1,273 12 effectiveness include “those designated to… Assist women experiencing Occidental such disadvantages to exercise their right to vote and to be elected.” U.N. Committee on the Elimination of Discrimination Against Women Source: CENI (CEDAW), General Recommendation No. 5, para. 45(c)

36 The Carter Center 2011 Elections in the Democratic Republic of the Congo

Campaigns nonelected government officials and thus required under Article 10 (5) and (6) of the 2006 electoral A number of the DRC’s international obligations are law to resign or request and be granted temporary relevant to the campaign period. These include but leave in advance of registration.79 The intent of are not limited to the right to participate in public the law is to prevent the use of public resources for affairs, including the establishment of political parties individual campaigns or political party benefit. Carter and the freedom of expression, association, and Center observers in South Kivu were told by opposi- assembly, each of which tion parties that a PPRD plays an important role in legislative candidate in the campaign period.75 Bukavu was able to register The campaign period while serving as mayor for presidential and legisla- The campaign period was characterized (an appointed office). tive candidates took place by misuse of state resources by public Though media violations from Oct. 28 to Nov. 26. officials, including candidates running were monitored by the The majority of political Superior Audiovisual and parties told observers for re-election or new office and public Communications Council they had limited funds to officials not running in the legislative race. (CSAC), violations of hold events and conduct electoral law by candidates outreach to potential or parties during the voters. Observers described campaigning as modest campaign period were not formally addressed by and found PPRD to be the most active; PPRD candi- any institution.80 dates held more frequent and larger-scale events.76 The right of assembly was not consistently Parties had limited access to free state media as means respected by Congolese authorities in regard to polit- to disseminate their messages. Observers witnessed ical parties.81 Under the constitution’s Articles 25 candidates from both the opposition and majority and 26 and Article 81 of the electoral law, parties are party distributing small gifts and money to attendees only required to issue a notice of plans to congregate at campaign events. The campaign period was characterized by misuse of state resources by public officials, including candi- 75 ICCPR, Article 25(a); ICCPR, Article 21; UNHRC General Comment 25, para. 26; SADC, Principles and Guidelines, para. 7.4 dates running for re-election or new office and public 76 It was reported that PPRD pledged to reimburse victorious candidates officials not running in the legislative race. Governors for a portion of expenses to encourage campaigning. in Equateur, Kasai Oriental, and Bas-Congo used 77 “The fairness of a campaign will be undermined where state resources official government events to promote their party, are unreasonably used to favour the campaign of one candidate or political party. State resources — such as the use of public buildings for campaign their party’s presidential candidate, and in the case events — should be available on an equitable basis to all contestants.” of Equateur and Kasai Oriental, themselves as legisla- Handbook on EU Election Observation (2nd edition), p. 52. tive candidates.77 The mixing of party promotion 78 This was observed most frequently in Mbandaka in Equateur province. and official events or launches of municipal projects 79 Those who “presently hold certain other governmental offices” may be denied “qualification for candidacy to elected office…on the basis of also allowed unofficial campaigning to begin before conflicts of interest or the doctrine of incompatibility of offices.” OSCE/ the official campaign period started on Oct. 28. ODIHR, Existing Commitments, p. 63 Carter Center observers reported this activity was 80 Under the African Charter on Democracy, Elections, and Governance, Article 17(2), “State parties shall establish … national mechanisms that particularly visible among PPRD/MP local officials. redress election-related disputes in a timely manner.” Observers also saw first-hand the use of (marked) 81 For a comprehensive documentation of violations during the electoral public vehicles for campaign activities during the period, see Office of the High Commissioner for Human Rights-Joint campaign period.78 Some of these candidates were Human Rights Office (OHCHR-JHRO) report of October 2011.

37 The Carter Center 2011 Elections in the Democratic Republic of the Congo

into violence at times, most notably between PPRD and UDPS and between UDPS and National Union of Congolese Federalists (UNAFEC). The tension between UDPS and UNAFEC is linked to family

Gwenn Dubourthoumieu origin. The UDPS supporters in Katanga who are of Kasai provinces origins and UNAFEC Katanga supporters compete over resources and land in Katanga province. While voting in the DRC falls along ethnic lines, observers did not report instances of hate speech used by parties or incitements to violence on the basis of ethnicity by parties.84 For the most part, parties exhibited undeveloped campaign platforms and community programs. Carter Center observers noted the parties, including legisla- tive candidates, campaigned in the provinces on a Citizens show their excitement in the streets on national platform that broadly promoted infrastruc- election day. ture development for the DRC, rather than offering programs with development plans specific to a or march. UDPS’s weekly Thursday protests outside province. Voters had difficulty discerning differences CENI headquarters in Kinshasa were repressed by among the large number of legislative candidates, police and sometimes escalated into violence that many of whom had insufficiently elaborated political involved excessive use of force by police. Carter programs and/or limited means to reach out to voters. Center observers were present at the weekly rallies This context reinforces a tendency in the DRC to in Kinshasa and described the use of tear gas and live vote along ethnic lines. ammunition fired in the air to control and disperse UDPS crowds. The United Nations’ systematic Campaign Finance logging of electoral incidents in 2011 found that party candidates were more likely to be targeted by authori- Through its international obligations, the DRC ties if they appeared to enjoy strong or increasing is required to take measures to prevent corruption public support.82 while treating all political parties and candidates Parties also alleged various administrative tech- equitably and maintaining a transparent campaign 85 niques not involving force were used to hinder party environment. activities in public areas.83 UNC representatives told observers in Bas-Congo they were blocked by police from entering venues in Matadi and Boma 82 “A trend seems to be emerging wherein parties were targeted more often in regions where they have significant numbers of followers and after PPRD held events in the same stadiums. Parties are predicted to be the biggest threat against the ruling majority and the also reported harassment from national intelligence President.” OHCHR-JHRO report, (2011), p. 22 agents (ANR). The ANR is run by the president’s 83 Under international law, everyone has the right of equal access to any place intended for use by the public without discrimination based on his/ office with a mandate to investigate treason and other her political views or affiliations. See ICCPR, Articles 2(1) and 26. crimes against the security of the state. UNC party 84 CSAC prohibits hate speech. Human Rights Watch (HRW) reported members told observers in Maniema that the ANR several instances of hate speech during the campaign period. confiscated shipments of party paraphernalia planned 85 U.N. Convention Against Corruption (UNCAC), Article 7; ICCPR, Article 25(b); International Convention on the Elimination of all Forms for the campaign period. of Racial Discrimination (ICEFRD), Article 5(c); UNHCR General Tensions between individual parties escalated Comment 25

38 The Carter Center 2011 Elections in the Democratic Republic of the Congo

Legislation on public financing of political A key limitation imposed by the law is that a campaigns was adopted on June 10, 2008.86 It sets party without parliamentary representation (either aside public funds to support general party activi- because it did not win seats in a previous election ties, such as administration, development of party or is a newly created party) is not eligible for either platforms, lobbying, constituency meetings, civic and type of funding. The large number of registered political education for its members and the public political parties in the DRC (over 400 as of August at large, and increasing opportunities for women. 2011), some of which serve as “satellite” parties to The law does not take established political parties, effect until the 2012–2017 necessitates a control to National Assembly and ensure groups merit public Senate members take office States should take active measures to funds by contributing to and, therefore, did not prevent public officials from making genuine political pluralism. apply to the 2011 elections. Attaching funds to parlia- The Carter Center offers personal gain or profit from their position mentary representation is a its analysis of the law in or privileging certain constituencies or common characteristic of advance of implementation. companies for their financial support. public finance legislation, The Center has identified and given the large number some aspects of the law of parties elected on that may be at odds with its stated aim to deepen Nov. 28 to the National Assembly, this threshold democratic pluralism and consequently merit close seems to be within the reach of many political parties.90 monitoring in practice. Though this threshold is also intended as a control The law specifies funding to parties will be to ensure funds are directed to legitimate parties, this supplementary as a government subsidy to a party’s amount may be out of line with the realistic means own resources. The amount contributed by the state available to all parties that have amassed public for general party activities and support cannot be support and represent constituencies.91 In the context less than 0.5 percent or exceed 1 percent of the of the DRC’s vast mining riches, where the majority total revenue of the state. The amount contributed is poor and a select few have wealth, the DRC may for campaign activities is fixed at 2 percent of state revenue. Linking public party funding to percent- 86 Law on Public Finance for Political Parties, Law 08/005 ages of total state revenue reinforces the importance 87 According to the Revenue Watch Institute, the DRC has made of revenue transparency by the government.87 The significant progress in reporting company payments, though revenue data proportion of these percentages allocated to each is still missing from its reports. party is based on its representation in the National 88 Provincial Assembly; Urban Council; Chief/Local Council Assembly and Senate or other deliberative body.88 89 The law requires parties to keep records, which may not legally obligate parties to share records with authorities beyond proof of tax In order to be eligible to receive these funds, payments. Under the law, parties are not required to publish and to make parties must satisfy certain criteria. Parties must be public to voters their sources of funding. registered with the Ministry of Interior, establish a 90 Ninety-four parties won seats in the National Assembly in the Nov. 28 election. Lawmakers should nonetheless monitor the ability headquarters, have a bank account with a minimum of “new parties to enter the political arena and to compete under fair balance of 2,500,000 Congolese francs (equivalent to conditions with the more well-established parties,” to determine any necessary state contributions and modifications to the current law. PACE $25,000), conduct a regular inventory of supplies and Recommendation 1516 (2001) on funding political parties, para. 8(ii) regular bookkeeping, and respect parity between men 91 Political parties have not shared their organizational assets or budgets and women in establishing party lists.89 Parties must with The Carter Center. Without this information, the extent that a $25,000 minimum threshold is reasonable or unreasonable cannot be fully request in writing to receive the funds. understood.

39 The Carter Center 2011 Elections in the Democratic Republic of the Congo

find that application of this provision of the law does to be informed on party positions — the small number not contribute to the development of representative of campaign events was coupled with minimal access parties and level opportunities between established by parties to airtime on free public media. Further, and smaller parties.92 Those parties that are able to parties that were elected on Nov. 28 to serve in the satisfy this requirement are arguably less in need of National Assembly have limited resources going public funding than are their counterparts that are forward to engage in consultation with their constitu- unable to meet this threshold. encies to inform the develop- Providing public subsidies ment of political platforms and to parties with substantial formulation of policies. resources relative to other Many Congolese media stations Participation of parties may reinforce stratifica- are associated with or owned by a Women, Minorities, and tion, widening the gap between political party or politician. Marginalized Groups elite and nonelite parties.93 This possibility increases The National Assembly oper- further because Congolese law ates under a party list system. does not impose limits on campaign spending.94 A This places a special responsibility on political parties more robust party finance law would place spending to find parity between genders in the party lists they limits on amounts that may be used during the elec- put forward. In recognition of this responsibility, the tion period for campaign purposes, in order to level finance law of 2008 links funding to gender parity in the playing field for actors. If the law contained this party lists for those parties wishing to benefit from characteristic, it may be better placed to achieve its public funds. If this law had been in effect for the stated purpose to guarantee equality of opportunity 2011 election, it is reasonable to assume party lists among elected parties. would have been comprised very differently. As it One important purpose political finance legislation can serve is to limit corruption through disclosure 92 Per capita income in 2008 (when this law was passed) was $327. laws concerning contributions and spending. States 93 As explained in Goodwin-Gill, Free and Fair Elections, “the rationale should take active measures to prevent public officials for public funding of political parties and election expenses is usually linked to the desirability of establishing, as far as possible, a ‘level playing from making personal gain or profit from their posi- field,’” p.141 (2006). tion or privileging certain constituencies or compa- 94 There are no campaign spending limits in the two laws governing nies for their financial support. There is no obligation political parties: Law 04/002 and Law 08/005. According the Vienna Commission’s Code of Good Practice, Sec. 1.2.3.ee, “…to ensure equality under this law for parties to make available their of opportunities…electoral campaign expenses shall be limited to a total budget, expenses, and sources of funding for the ceiling, appropriate to the situation in the country.” campaign period or in general.95 95 “There should be a transparent system of disclosure of the funding received by any party or candidate.” International IDEA, Legal Carter Center observers were told in meetings with Framework, p. 65. See also Carter Center, Atlanta Declaration, a range of political opposition parties that the lack “Companion legislation that would further promote the right of access to information…should be enacted, including: laws compelling disclosure of of public financing available in this election was a political party and campaign financing.” 96 significant hardship. Political parties told observers 96 “Political parties should receive financial contributions from the state they had very limited funds, which they derive largely budget in order to…guarantee equality of chances between political parties.” PACE, Recommendation 1516 (2001) on financing political from individual membership fees, sales of party parties, para. 8(ii) 97 paraphernalia, and donations. The consequence of 97 “Guarantees of free speech, opinion, information, assembly, this lack of funding was demonstrated by the modest movement and association take on greater significance during elections. The prevailing atmosphere should be one of respect for human rights number of campaign events in advance of the Nov. and fundamental freedoms…” U.N., Human Rights and Elections: A 28 elections. This limited outreach by parties during Handbook on the Legal, Technical, and Human Rights Aspects of Elections, para. 115 the electoral period provided voters less opportunity 40 The Carter Center 2011 Elections in the Democratic Republic of the Congo

stands, out of the 18,386 individuals registered as providing impartial voter information. The work of legislative candidates, only 2,277 were women, or analyzing the political environment by giving citizens 12.4 percent. Congolese law strikes a sensible balance the possibility to watch various media events chal- on the issue of participation of women. Though it lenging ideas and programs on electoral strategies was does not require quotas for female legislatures, as nonexistent. envisioned under the Beijing Freedom of thought and guidelines, it conditions expression is guaranteed important public funding of under Congolese law and parties to those parties that The Congolese government as well as is a necessary component satisfy a high threshold (50 the international community should of the electoral period to percent) for representation allow voters to make free of women.98 The current law reinforce the capacity of the media and informed choices for does not include incentives and permit Congolese journalists to their representatives on to increase representation of conduct their work professionally. election day.100 Journalists Pygmies or other historically who write critically about marginalized groups. the ruling party in the DRC risk personal or profes- The Media sional harm. According to a reporter from Radio Okapi who met with Carter Center observers in International obligations require the DRC to protect Kinshasa, the environment for journalists reporting the rights of freedom of opinion and expression, along on sensitive political issues is improving. Journalists with the right to seek, receive, and impart informa- in Danger (JED) released a report in December 2011 tion through a range of media.99 documenting violations of press freedom and harm to Public and private Congolese media played poten- journalists over the year.101 The watchdog group cited tially contradictory roles in the electoral process. On one case of a journalist being assassinated; nine arrests the one hand, they were a source of independent of journalists; 33 journalists taken in for questioning; information for the public, but on the other, they 28 journalists harassed or ill-treated; and 29 journal- served as propaganda tools for candidates and their ists who received threats. With the exception of one followers, abandoning the exchange of ideas and correspondent from state-owned RNTC, all of the debate in favor of sometimes inflammatory rhetoric journalists were affiliated with community-based or and serious inaccuracy. private radio, television, and newspapers. The DRC has a large number of print and digital The Superior Audiovisual and Communications media outlets. There are a large number of television Council (CSAC), an institution of democratic stations (52) and radio stations (240). There are approximately 200 newspapers in circulation in major cities. Community radio stations played a crucial role 98 The Fourth World Conference on Women, held in Beijing, China, in the electoral process as a way to reach populations called for female representation levels in government of at least 30 percent (1995). in remote areas. Many Congolese media stations are associated with or owned by a political party 99 ICCPR, Article 19 100 “Freedom of expression and information, including the right to seek, or politician. receive, and impart information and ideas…in writing, or in print,… The media, whether written press, television, or is a fundamental and inalienable human right and an indispensible component of democracy.” AU Principles on Freedom of Expression in radio, public or private — largely pursued the objec- Africa, Article 1.1 tive of electoral victory for their candidates, putting 101 Not all of the cases documented by Journalists in Danger (JED) in its aside much of the work of responsible journalism or report were linked directly to election-related coverage.

41 The Carter Center 2011 Elections in the Democratic Republic of the Congo

support intended to regulate the media and ensure For its part, international media was not spared equal airtime on public stations, was established from intimidation, and there were obstacles that on Oct. 11, 2011. The government of the DRC’s hindered the free movement of international journal- failure to establish CSAC with more lead time prior ists, including confiscation of supplies and interrup- to the elections hobbled the institution’s ability to tions of signal.102 The signal of French radio station implement its mandate. Article 33 of the electoral RFI was interrupted for seven days after it broadcast law designates CSAC in charge of the supervision a speech during which Tshisekedi declared himself of media activities related to the president of the DRC. the electoral period. During During the tabulation of legisla- the campaign period beginning tive results, a television station on Oct. 28, CSAC undertook Congolese human rights in Lubumbashi had its signal monitoring media across the groups critical of government interrupted after making a state- entire country. Overall, CSAC misconduct operate in ment that denounced irregulari- issued some 60 sanctions to ties on election day. The owner journalists and broadcasters. a restricted environment of the station is a member of the The first sanction was the inter- in the DRC. MP coalition and was a candi- ruption of the signal of RLTV date in the legislative elections. for seven days after it broadcast The European Union, which a speech made by Tshisekedi that criticized the did in-depth media monitoring during the electoral government and included an incitement to violence. period, took note of similar incidents regarding bias Though the speech was considered inflammatory, and partiality in the media. Statements cited jour- other television stations broadcast the speech and nalist intimidation as well as biased media sources were not sanctioned like RLTV. Also noteworthy to be a significant problem. For instance, on RTNC, was the apparent incapacity of the CSAC to remove a public media source, Joseph Kabila has received large banners depicting President Kabila that hung 86 percent of time spent on presidential candidate on the exterior walls of state-owned station National coverage, with 7 percent to Kengo, 3 percent to Congolese Television (RNTC). Similar Kabila Kamerhe, and 1 percent to Tshisekedi. Their analysis pictures were removed from the main stadium in identified significant media bias across the whole Kinshasa. Further damaging its perception as an country, along with the partiality of CSAC, which independent body, CSAC offices were located in the arbitrarily shut down opposition radio stations during RNTC building. the elections and tabulation processes. The EU As a regulatory body, CSAC holds the promise statements concluded that by maintaining a partial to become a strong instrument to promote the free stance during the electoral period, CSAC did not expression of political actors and regulate infractions fulfill its obligation to ensure that public information that arise. But such a media environment does not yet was accessible.103 exist in the DRC. The Congolese government as well as the international community should reinforce the capacity of the media and permit Congolese journal- ists to conduct their work professionally. 102 “The media should be assured by the government of: 1) the right to gather and report objective information without intimidation; and Each of the presidential candidates was offered 2) no arbitrary or discriminatory obstruction or censorship of campaign messages.” Norwegian Helsinki Committee, Election Observation in a 60-minute broadcast slot to present their platform. “Manual on Human Rights Monitoring: An Introduction for Human All but three of the candidates took advantage of Rights Field Officers,” p. 15 this facility. 103 EU Preliminary Statement, Dec. 2, 2011; EU postelection statement Dec. 13, 2011

42 The Carter Center 2011 Elections in the Democratic Republic of the Congo

Civil Society All persons have the right to

Myriam Asmani participate in the public affairs of their country. Not only does this include the right to vote and to be elected, it also includes the right of citizens to participate in nongovernmental organizations.105 Congolese civil society plays a crucial role in monitoring and supporting the electoral process. Throughout its mission, Carter Center observers conducted meetings with human rights defenders, journalists, domestic observers, and Domestic observers watch the counting process at a polling station. church organizations. Congolese human rights groups critical of government JED also undertook monitoring of public and misconduct operate in a restricted environment in private media with the largest viewership. JED the DRC. During the electoral period, these groups described a media culture that is often manipulated felt increasing pressure from authorities, in particular by candidates and political parties. The influence of the ANR, which reports directly to the president’s money and a partisan bias in coverage of the elec- office. The agency takes a broad interpretation of its toral period was manifest. JED documented 42 cases mandate to investigate crimes against the security of where the dissemination of information was hindered the state, monitoring the work of civil society leaders. during the electoral process, limiting voter access to Directors of a prominent civil society organization information in advance of the elections. Congolese that issued public statements on the electoral process journalists in many cases engaged in self-censorship to left their organizational headquarters for several weeks avoid interrogation or arrest. The standard of living for security reasons after receiving anonymous threats. of journalists makes them especially vulnerable and susceptible to the power of money in order to provide for their families. Corruption and intimidation as well as a general lack of means for journalists create a media environment that fails Congolese citizens 104 “1. This Convention is applicable to the following acts of corruption by not showing real debate between candidates or and related offences: (f) the offering, giving, solicitation or acceptance directly or indirectly, or promising of any undue advantage to or by political analysis. It is hoped that the DRC will take any person who asserts or confirms that he or she is able to exert any measures to fulfill its obligation to prevent corrup- improper influence over the decision making of any person performing functions in the public or private sector in consideration thereof, whether tion in the media and strengthen CSAC so as to the undue advantage is for himself or herself or for anyone else, as well as the request, receipt or the acceptance of the offer or the promise of implement its mandate more effectively, as noted in such an advantage, in consideration of that influence, whether or not the African Union Convention on Preventing and the influence is exerted or whether or not the supposed influence leads 104 to the intended result.” AU Convention on Preventing and Combating Combating Corruption. Corruption, Article 4(f) 105 CEDAW, Article 7

43 The Carter Center 2011 Elections in the Democratic Republic of the Congo

Many international sources recognize the reporting forms and a reference manual for CEJP important role of independent observation in free observers and contributed to a series of trainings in elections.106 The presence of neutral and capable several provinces. domestic observers in polling stations on election Participation of Women, Minorities, and day can deter fraud and Marginalized Groups strengthen confidence in the final results. CENI The Supreme Court of Justice (CSJ) One of the principal domestic observation issued 187, 238 individual declared itself competent to settle disputes accreditations. There were groups was the women’s 99,426 domestic observers on behalf of the Constitutional Court umbrella network who observed the conduct when no court was planned to assume CAFCO. They deployed of the polls on Nov. 28. its functions concerning the laws 1,882 observers on elec- CENI accomplished the governing the elections of 2011. tion day. They reported enormous task of accredita- that women appeared to be tion for domestic observers voting in equal numbers in advance of election to male voters despite day, though groups in family responsibilities that Bas-Congo reported to The Carter Center that the influence women to stay home. Women comprised a processing period frequently exceeded the seven-day significant number of the observers deployed by limit under Article 43 of the electoral law.107 other NGOs. International NGO EISA supported Important domestic observer groups included: the deployment of 278 Pygmy and 60 albino observers Episcopal Commission for Justice and Peace (CEJP); in Equateur, Katanga, and province Orientale on National Network for the Observation and the election day. Supervision of the Elections to Congo (RENOSEC); Network of the Main Religious Groups (ROC); Electoral Dispute Resolution Framework of Consultation of the Congolese Formalized electoral dispute resolution is necessary Woman (CAFCO); and National Counsel of the for meeting international and national obligations to Youth (CNJ). RENOSEC, ROC, CAFCO, and CNJ ensure that effective remedies are available for the published their findings in four joint reports. These redress of violations of fundamental human rights reports documented instances of irregularities and related to the electoral process.108 reported problems in transparency and obstruction of the work of independent observers during the tabula- tion. The Catholic Church released a statement in 106 See, for example, SADC, Principles and Guidelines Governing Democratic Elections, para. 7.8. To support the role of party witnesses December based on their observations with similar and independent observers: “Ensure the transparency and integrity of the findings of irregularities and questioned the accuracy entire electoral process by facilitating the deployment of representatives of political parties and individual candidates at polling and counting stations of results announced for the presidential vote. and by accrediting national and other observers/monitors.” Since 2007, the Carter Center’s Human Rights 107 “Accreditation is given at the latest seven days after submission of the House has supported the work of Congolese civil request.” (Party witness accreditation has a five-day processing period.) society. The Human Rights House reinforced local 108 This principle provides “a safety mechanism ensuring that the rule of law, rather than any politician or external body, controls the conduct observer capacity during this election period by of elections. A judiciary functioning under these principles serves both assisting CEJP’s deployment of 6,000 observers on the important cause of peaceful dispute resolution and that of protecting the process from bias or fraud.” U.N., Human Rights and Elections: election day. The Human Rights House developed A Handbook on the Legal, Technical, and Human Rights Aspects of Elections, para. 47

44 The Carter Center 2011 Elections in the Democratic Republic of the Congo

The Supreme Court of Justice (CSJ) declared The current magistrates of the CSJ were trained itself competent to settle disputes on behalf of the twice in electoral law. From Oct. 12–15, 2011, Constitutional Court when no court was planned to UNDP supported a training organized by the Superior assume its functions concerning the laws governing Council of the Judiciary. This three-day training the elections of 2011. According to the constitution was not open to the public or election observers. of 2006, the CSJ would be replaced by three courts, a The second training, with partnership of the Court of Cassation, a Council International Organization of State, and a Constitutional for the Francophonie, was Court. While waiting for the led by European and African implementation of these insti- The Carter Center regrets academics and electoral dispute tutions, the Supreme Court of practitioners. This session Justice adjudicates civil, admin- that the Supreme Court of Justice centered on the interpretation istrative, and electoral disputes, did not make its rulings public of the electoral law to prepare as well as the interpretation of despite requests to do so from for ruling on electoral disputes. the constitution. The CSJ sits various groups. At the end of the deadline in Kinshasa and has no repre- for registration and after sentation in other provinces. analysis of applications, CENI The composition of the publishes a provisional list Constitutional Court as planned in the constitution of candidates, which can be challenged before the will be very different from the current CSJ. Its nine Supreme Court of Justice (acting on behalf of the members will be appointed by the president of the Constitutional Court) within four days of publica- republic by proposition of the Council Superior of tion.109 This time frame is very short considering the the Judiciary (CSM). A third of its members will size of the country, the lack of infrastructure, and be appointed on initiative of the president of the absence of representation of the CSJ in provinces. It republic, a third by Parliament, and a third by the can constitute an obstacle to the right of due process CSM. This mode of appointment will strengthen the for the candidates and an unreasonable obstacle to independence of its members and consequently the the right to stand.110 confidence of citizens. Table 7: Election Dispute Submission of Time frame to Time frame to Responsible court candidacies submit complaint settle the case Two days following publication Seven days starting after of provisional candidate list or Constitutional Court Presidential election expiration of the 48-hour notification of the decision of (Article 107) delay (Article 107) denial by CENI (Article 107) Four days starting the first Seven days starting when working day after publication Constitutional Court Legislative elections the case is submitted of provisional candidate list (Article 27) (Article 27) (Article 25)

109 Article 25 of the electoral law parties to seek redress.” OSCE, Resolving Election Disputes in the OSCE Area: Towards a Standard Election Dispute Monitoring System, para. 110 “Time-limits and procedures governing the admissibility of complaints II.H.40-43 and appeals should be designed so as to preserve the right of aggrieved

45 The Carter Center 2011 Elections in the Democratic Republic of the Congo

On Oct. 13, 2011, 17 new judges were appointed acts of election-related violence were documented to the CSJ in anticipation of electoral disputes. These by the United Nations in advance of the Nov. 28, new appointments were made after disputes emerged 2011, elections. These incidents were linked directly from the submission of candidacies earlier in October. to the elections and targeted political parties, espe- Three judges sitting at the time of these disputes cially parties among the opposition; journalists; and settled 84 cases regarding human rights defenders. candidate nomination (56 Kinshasa, Lubumbashi, and were considered nonreceiv- Mbuji-Mayi were at the able, and 10 were rejected center of this violence. for procedural reasons). Out Forty-five acts of election-related Clashes between supporters of the 18 complaints exam- violence were documented by the of UDPS and PPRD occurred ined, 14 were withheld. The United Nations in advance of the on several occasions, starting Carter Center regrets that the Nov. 28, 2011, elections. just after the submission of Supreme Court of Justice did Etienne Tshiskedi’s presiden- not make its rulings public tial application. The violence despite requests to do so from damaged the headquarters of various groups.111 This lack of transparency does not both parties as well as the RLTV, a television station respect international best practice in treatment of linked to UDPS, which was set on fire. Details on legal disputes by concealing possible modifications of who started the fire and how it happened are election results stemming from electoral disputes.112 not known. Notwithstanding concerns on the conformity of During the different incidents of political party procedures with international standards, the judicial violence, youth were mobilized by different parties. procedures before the CSJ as defined in the law are Typically, the young men involved in the confronta- improved compared to previous elections and contain tions were not politically engaged with the parties. elements that strengthen its quality. However, the Postelection Violence Supreme Court of Justice showed a lack of rigor and transparency in the application of these texts. According to Human Rights Watch, at least 24 civil- Appointed shortly before election day, the new ians were killed, and many others were injured by magistrates who were said to be very close to the Congolese security forces in the weeks following the ruling party did not address concerns regarding their announcement of election results.113 Those killed independence and impartiality. The legitimacy of included opposition members and others gathered on the court rests on the trust in which citizens put in the street or even in their homes. HRW also cited its decisions. In its treatment of electoral disputes the involvement of the Republican Guard in illegal of 2011 elections, the court did not earn or keep the trust of citizens, especially candidates and 111 On Nov. 22, The Carter Center published a press release asking the Supreme Court to publish its decisions on the submission of candidacies political actors. for the presidential elections to reinforce public and political party trust in the judicial system. Election-Related Violence 112 “Responses to complaints should be provided in a timely manner, and all hearings and rulings should be public.” OSCE, Election Observation The security situation in the DRC was always an Handbook (Fifth Edition), p. 36. See also “The complaints procedure should be undertaken in a transparent manner, including public hearings important consideration in this electoral process. The and the publication of decisions and reasons.” Handbook for European violence during the elections of 2006, particularly Union Election Observation (Second Edition), p. 60 after the official announcement of the first round 113 Human Rights Watch press release, Dec. 22, 2011, “DR Congo: 24 Killed Since Election Results Announced” presidential results, left a bitter memory. Forty-five

46 The Carter Center 2011 Elections in the Democratic Republic of the Congo

detention and arrests. The guard is tasked solely maintain public order and, by extension, to protect with protection of the president but forbidden by citizens and property.114 Congolese law to arrest civilians. The security situation in eastern DRC worsened After the announcement of provisional results during the electoral period with cases of violence for the presidential election, Kinshasa saw clashes documented and a population that was traumatized between the MP supporters and in some cases forcibly and opposition parties displaced from their challenging the results. The homes. The reform of Congolese National Police Congo’s security sector (PNC) was deployed to After the announcement of provisional lessened military pressure volatile parts of the city. results for the presidential election, on armed groups, leaving On Dec. 9, three people Kinshasa saw clashes between the the population isolated in were killed and many certain cases. others injured in the neigh- MP supporters and opposition parties The capacity limitations borhoods of Ngiri-Ngiri and challenging the results. of the PNC have several Makala. In Lubumbashi sources: lack of material and Mbuji-Mayi, protests means; limitations of following the results esca- the legal framework and lated to clashes with several injuries involving opposi- the particular regulations governing the PNC; the tion supporters and security forces. absence of uniform, professional training; insufficient After Etienne Tshisekedi’s self-proclamation as salary; and an absence of social responsibility. The president, security forces surrounded his residence in inadequate security of the polling stations on election Limite, Kinshasa. Since December 2011, he has been day and the CLCRs during the tabulation process under de facto house arrest. compounded the CENI’s technical and procedural The lack of preparation of the PNC to provide problems. Security sector reform remains an ongoing security during the electoral process introduced the area of development in Congo, and efforts to ensure presence of the Republican Guard to repress public electoral security must enable the Congolese people protests at crucial moments. Every intervention by to exercise their democratic rights without fear of the Republican Guard demonstrated the lack of violence or intimidation.115 preparedness and capacity of the national police to

114 “Every individual shall have the right to liberty and to the security of the person. No one may be deprived of his freedom except for reasons and conditions previously laid down by law.” AU, African Charter on Human and People’s Rights, Article 6 115 This reform should be undertaken so that security forces are better able to meet their responsibilities to support the right to security of the person.

47 The Carter Center

Election Day

he voting process is the cornerstone of the parts of eastern DRC. Isolated incidents of violence obligation to fulfill genuine, periodic elec- in or near polling stations were also reported on Ttions that express the will of the people.116 election day. As in 2006, there were reports of blank The Congolese people dem- ballots being burned by citi- onstrated their strong desire zens (presumably to prevent to have their voices heard electoral fraud) as well as cast on election day by coming Overall, voting took place under ballots that were burned after out to vote in large numbers, voting. PNC were deployed despite some having to travel calm and peaceful conditions, though to voting centers in insuffi- long distances to reach the the presence of illegal armed groups cient numbers to protect and polls and others facing heavy hindered transport of electoral secure every polling station. rain.117 In some districts, materials in parts of eastern DRC. Carter Center observers particularly in eastern DRC, visited nearly 300 polling voting was extended through stations on Nov. 28 across the Nov. 29 and 30 because of DRC’s 11 provinces. Though insecurity and lack of voting materials.118 Some poll- the Center’s deployment provided broad geographic ing stations had not received ballots to begin voting coverage of the country, including both urban and on Nov. 28, and others ran out of ballot papers before rural areas, the findings they reported are not based voting was completed.119 on a probability sampling design, which could ensure Overall, voting took place under calm and peaceful results are statistically representative of the country’s conditions, though the presence of illegal armed 63,000 polling stations. Nevertheless, each team groups hindered transport of electoral materials in completed a detailed checklist for each polling station visited, and these findings were compiled to provide an indication of potential patterns.

Laura Salich List of “Omitted Voters” Carter Center observers reported that the CENI posted the majority of voter lists at polling stations only two to three days before the election, a full month behind the CENI election calendar, denying the 32,024,640 registered voters the appropriate opportunity to confirm their names were on the list

116 ICCPR, Article 25 117 Voter turnout was 58.4 percent for the country, ranging from 47.2 percent in Kinshasa to 69.7 percent in Kananga. 118 CENI communicated the extension in the media; there was no written directive made public. Carter Center observer Koffi Anzoua speaks with a CENI 119 Insufficient numbers of ballots could be attributed to general error or representative outside a polling center in Kindu, Maniema a large number of derogation voters. province. 48 The Carter Center 2011 Elections in the Democratic Republic of the Congo

names are missing from voter lists will be allowed to vote at the site listed on the voter card or the nearest site in the Myriam Asmani same district.” Polling officials were to make note of their names on a ‘list of omitted voters.’121 While the use of a list of omitted voters can serve to affirm and further the right to vote, it contradicts Article 6 of the electoral law, which prescribes that, “the quality of being a voter is recognized by being recorded in the voters lists and holding a voter registra- tion card issued by the Independent National Electoral Commission.” Use Voters search for their names on the voter list outside a polling station. of lists of omitted voters also weakens safeguards that are in place to prevent multiple voting or to prevent ineligible voters (active-duty military, police) and to identify their polling station. As late as Nov. who manage to obtain a voter ID card from voting. 27, Carter Center observers reported voter lists were Under its international commitments, the CENI missing from some polling stations in Kalemie, Mbuji- should have taken more vigilant measures to ensure Mayi, and Beni. Observers were told the month delay that access to voting was sufficiently secure.122 The in posting lists was a precaution to prevent damage decision to allow omitted voters to cast a ballot was from rain, vandalism, or theft.120 The late arrival of a significant course of action, but it was announced voter lists to local offices from the CENI headquarters too late to be incorporated into the training of polling in Kinshasa also contributed to the delay. station workers.123 Carter Center observers found that This late posting violated Congolese law and the many poll workers were unaware of the decision to rights of voters. Article 8 of the electoral law obli- implement this procedure. As a result, application gated CENI to publish voter lists at polling stations of a list of omitted voters was inconsistent between no later than Oct. 28 so that voters may identify their polling station in advance of election day and 120 Interestingly, CENI also justified the late posting of lists as precisely have sufficient time to inform CENI of any errors. to prevent voters from verifying their names, since most polling stations On election day, observers found that voter lists were were to be found at schools with children. displayed outside in 80 percent of polling stations 121 In 2006, CENI allowed lists of omitted voters in selected parts of the East because voters’ list data was missing from some polling stations. The they visited. Observers reported large numbers of Carter Center cautioned against use of lists of omitted voters in 2006 voters were unable to find their assigned polling and 2011 due to inadequate measures in place to protect against electoral fraud through multiple voting. station after reaching the voting center listed on their 122 “…Take all necessary measures and precautions to prevent the voter identification card. perpetration of fraud, rigging or any other illegal practices throughout the Some voters who could not find their names on whole electoral process, in order to maintain peace and security.” SADC, Principles and Guidelines Governing Democratic Elections, para. 7.6 the list went home without voting, while others voted 123 Poll workers were trained over a three-day period from Nov. 23–25 based on a last-minute provision introduced by the (shortened from five days). “Polling personnel will require clear guidance CENI on Nov. 25, 2011. This CENI press release in admitting…qualified voters.” U.N., Human Rights and Elections, para. 11 stated that those “who have voter cards and whose 49 The Carter Center 2011 Elections in the Democratic Republic of the Congo

time, at 6:00 a.m., and only half were open by 7:00 a.m.126 In these cases, observers reported that polling station Myriam Asmani workers were present and that delays were due to unfinished preparations for opening or missing ballots. Under Article 56 of the electoral law, each polling station is to receive enough ballots to accommodate the number of registered and anticipated voters 48 hours before the vote begins. Such delays in opening as were seen on elec- tion day compromise the right to vote. However, in most cases, polling stations with late openings extended their hours Field office director Baya Kara (right) speaks with a CENI official at a CLCR proportionately to respect the electoral in Kinshasa. law designation of 11 voting hours and ensure voters could cast their ballots. Polling stations displayed empty ballot polling stations; voters were turned away from some boxes before voting began. Observers found good or polling stations, while others in the same situa- satisfactory adherence to opening procedures in the tion at different polling stations were able to vote. majority of polling stations they visited. Notwithstanding concerns with use of lists of omitted During polling, observers reported that indelible voters, inconsistent application of this procedure ink was not consistently used in polling stations. compromised the equal participation rights of citizens. Marking fingers with ink is required under Article According to the EU election observation mission, 57 and is an essential safeguard to protect against 17 percent of all voters were “omitted voters” or multiple voting. Observers in Kisangani were told “derogation voters.”124 Carter Center observers noted by some voters that they voted more than once. that lists of omitted voters were included in the lists Observer teams in Bandundu, Katanga, Equateur, and of derogation voters, though they are distinct catego- Kasai-Occidental reported that minors who appeared ries. It is thus recommended that the CENI better to be well under the age of 18 were voting, some anticipate difficulties to avoid having to resort to the who looked as young as 10 or 11. No Carter Center use of remedial procedures such as a list of omitted observer reported electoral propaganda inside or near voters or other measures that might compromise the polling stations. integrity of the vote.

Opening and Polling The election commission set up 63,865 polling stations across the DRC divided among 16,000 124 Derogation voters are voters outside their areas of residence. voting centers. Each polling station was staffed by a Categories specified under Article 59 include CENI workers, public president, a secretary, first and second assessors, and servants, candidates, party witnesses and domestic observers, and families of military and police on mission. a supplementary assessor.125 The majority of polling stations visited by Carter Center observers opened 125 Article 49 of the electoral law late. Only a quarter of polling stations opened on 126 Polling station hours are 6 a.m.–5 p.m.

50 The Carter Center 2011 Elections in the Democratic Republic of the Congo

Observers reported the time it took voters to consult ballots allowed oppor-

John Stremlau tunities for party agents to intervene. Observers said the practice of party agents accompanying voters inside the voting booths was frequent and wide- spread. Allowing partisan agents to assist voters compromised free expression of the Congolese electorate and secrecy of the vote. In some of these cases, observers said the voter did not ask for assistance in casting the ballot before it was volunteered by a party agent.131 The CENI voting procedures allow blind or illiterate voters to have a person of their A voter’s finger is marked with indelible ink. Not all polling stations used the indelible ink, which reduces incidence of voter fraud. choosing accompany them into voting booths. This ideally should be a polling station worker, relative, or other neutral Observers reported that some polling stations were person. The CENI designed ballots with the name of without ballots, some with only legislative ballots or the candidate, a color photo, the party symbol and presidential ballots, some without ballot boxes, and acronym, and the candidate number. These measures some without voting booths.127 Observers reported increased the length of the ballot and the time and that in 53 percent of cases ballot papers were not cost of printing but were seen as necessary measures in sufficient quantity to accommodate all voters. In to help voters cast their ballot for the candidate of cases of missing voting booths, polling stations were their choice, with little or no assistance. Poll workers operational to give electors the opportunity to vote, undermined the benefit of these ballots as well as the although obscuring the privacy of the vote. voting booths used to ensure secrecy of the vote in Voting took place in at least 400 polling stations cases where party agents were allowed to volunteer on Nov. 29 after delivery of ballots by truck and and assist voters.132 MONUSCO helicopters. The CENI also attempted to send extra, unused ballots from polling stations (some polling stations had 10–20 percent excess 127 “Sufficient quantities of voting materials must be available at each polling place,” U.N., Human Rights and Elections, para. 111 ballots) to redistribute to other polling stations, 128 For example, OSISA, which supported a network of 5,000 domestic raising concerns among groups of how the commis- observers, reported that already-filled-in ballot papers were seen across the sion would track and account for these ballots.128 country. Legislative ballots for the 169 electoral districts 129 However, the number of candidates on each party’s list was limited to the number of seats per electoral district. were very lengthy due to the unrestricted number of 130 CENI planned for 600 voters per polling station in provinces outside parties submitting candidates under the open party of Kinshasa and 400 for Kinshasa. 129 list system. The ballot in Kinshasa’s Tshangu 131 Assistance should be provided by a person of the voter’s choice, district was a 57-page booklet with over 1,500 at his/her request. U.N. Convention on the Rights of Persons with Disabilities, Article 29(a)(iii); “Assistance provided to the disabled, blind, candidates. As in 2006, the CENI took the sensible or illiterate should be independent.” UNHRC, General Comment 25, measure to reduce the number of voters per polling para. 20 station in Kinshasa by 200 to balance the additional 132 Under Article 58 of the electoral law, no voter may assist more than time needed to cast legislative ballots there.130 one voter. 51 The Carter Center 2011 Elections in the Democratic Republic of the Congo

vote is respected and that the election results reflect free expression of the will of the voters.135 Voters standing in line at the time

Hélène Helbig de Balzac of the close of the polling station are entitled to remain in line and cast their ballots. Observers reported this rule was respected at polling stations in 75 percent of cases. Under the watch of party agents and independent observers, ballots were counted out loud and recorded by poll workers. Carter Center observers reported the counting process A page out of a legislative ballot in Kinshasa. Some ballots contained as many continued through the morning of as 1,400 candidates for one constituency. Nov. 29 in districts with large numbers of legislative candidates, and some There were reports of polling stations being moved stations temporarily interrupted the in the middle of voting operations to new locations.133 counting operation to allow workers to sleep. While the CENI’s apparent aim of increasing access In less than half of polling stations visited, of polling stations to all voters is commendable, observers reported that five voters were not desig- moving cast ballots before counting presents an nated by the polling station president at closing time opportunity for electoral fraud and contravenes the to observe the counting process for presidential and CENI’s own voting procedures. legislative ballots as required under Article 62 of the Moving polling stations with cast ballots and insti- electoral law. Observers reported in 96 percent of tuting lists of omitted voters may allow some voters their polling stations that party agents were present who otherwise would not be able to cast their ballots for counting of both sets of ballots, with a similar to do so. However, the integrity of the overall results figure (92 percent) for domestic observers. Among is put into question because important safeguards party agents, UDPS, PPRD, and UNC were present have been removed from the process. The CENI can better respect the right to vote of Congolese citizens through improved organization of polling station selection and the assignment of voters to each station.

133 For example, Carter Center observers in the district of Gemena, in Closing and Vote Counting Equateur province, were contacted when the head of a voting center in Bobisi received a phone call at 11 a.m. from a CENI superior to move International and regional agreements recommend each of his six polling stations to remote parts of the same district. Voters that votes be counted by an independent and impar- assigned to these six polling stations were to vote in polling stations in either of the two other voting centers in Bobisi. Around 2:00 p.m., tial electoral management body whose counting ballot boxes containing already cast ballots and blank ballots and polling process is public, transparent, and free of corruption. station workers were all transported to Bowakara (12 km from Bobisi) and Bosumaka. Voting operation then started in both places. At the end of A transparent and nondiscriminatory vote-counting the day, votes from Bowakara and Bosumaka were returned to the original process is an essential means of ensuring that voting center in Bobisi for counting. the fundamental right to be elected is fulfilled.134 134 UNCAC, Article 13(a); ICCPR, Article 25(b) Moreover, accurate and secure counting of votes can 135 ICCPR, Article 25(b); ACHR, Article 23; AU New Partnership for Africa’s Development (NEPAD), Declaration on Democracy, Political, help to ensure that the principle of one person, one Economic and Corporate Governance, para. 7

52 The Carter Center 2011 Elections in the Democratic Republic of the Congo

in the largest numbers. In these stations, 54 percent over into election day in these places, which saw of party agents received a copy of at least one results isolated outbreaks of violence. Voters in some tally (presidential or legislative).136 instances attacked fellow citizens and election In only 70 percent of stations visited were workers they believed were engaging in election fraud. presidential and legislative results posted in front The majority of these attacks were spontaneous, of each polling station as required by procedures.137 directed at individuals with unmarked or previously Distribution of the results marked ballots. In the Mont copy and the display of Amba district of Kinshasa, results in front of polling voters beat a woman whom stations are the only times Voters in some instances they suspected of wrongdoing parties are guaranteed access attacked fellow citizens and because she was carrying to individual polling station blank ballots. Other violence results. Posting and distribu- election workers they believed were targeted polling stations tion of polling station results engaging in election fraud. or election materials. The can provide party agents and population set fire to polling observers with an effective stations to prevent fraud, means to verify that the which prevented voting and vote tabulation takes place on the basis of legitimate nullified previous votes. In Bangbemba, six kilome- counts. The CENI is not required to publish its presi- ters from Lubumbashi, two CENI trucks delivering dential or legislative results disaggregated by polling ballots were attacked. In Fizi, trucks with ballots were stations; it is only required to publish by constituency. attacked by rebels. Overall, observers rated the quality of respect for Congolese police were responsible for securing closing and counting procedures as good in 61 percent polling stations on election day. Observers reported a of cases, 30 percent satisfactory, and 9 percent poor. police presence at between 88–96 percent of voting centers. However, police were deployed in insufficient Security numbers to protect workers, citizens, and property. According to the PNC, the late release of the polling The possibility of election-related violence as seen station map impacted election day security. Police in Kenya in 2007 and Ivory Coast in 2011 gave rise could not develop a deployment plan without a map to a warning to Congolese political leaders from the of polling station locations. International Criminal Court on Nov. 11, 2011. The Insecurity unrelated to the electoral period ICC, which has indicted leaders from Kenya and Ivory obstructed voting in some parts of the East. The Coast, announced it would be monitoring events in presence of armed rebel groups discouraged voters the DRC and that recourse to violence would not be in remote areas of South Kivu from traveling to and tolerated. This was an unusual action by the court, waiting at polling stations. and though not all types of election violence would rise to crimes against humanity or other international crimes under the ICC’s jurisdiction, the statement 136 Under the electoral law, party agents are entitled to a copy of the can be seen as an indication of the strongly perceived results form. Each procés-verbal (PV) had five copies set aside for party threat of violence the DRC faced on election day and agents. Domestic observers are not entitled to a copy but may conduct a during the postelectoral period. parallel tabulation of results based on their notes. 137 EISA and Electoral Commissions Forum of SADC, Principles for The political climate during the last days of the Election Management, Monitoring, and Observation (PEMMO), p. 26 campaign period was tense, especially in Kinshasa, recommends that results of the count be published in a timely manner, Katanga province, and Mbandaka. Tensions carried publicly announced, and posted.

53 The Carter Center 2011 Elections in the Democratic Republic of the Congo

Access for Domestic Observer Groups visited by Carter Center observers. Observers encoun- and Party Agents tered a small number of party agents who had little or no advance training and were not familiar with The election commission accredited 99,426 neutral voting and counting procedures. domestic observers. Domestic observers reported that at smaller polling stations, party agents were given Participation of Women and Marginalized Groups privileged access when there were a limited number of Carter Center observers estimated that females voted places. Under the CENI procedures, six party agents in equal proportion to male voters, though statistics and four domestic observers on the number/proportion are permitted in a polling of female voters have not station at one time. If there been released by the CENI. are more representatives Carter Center observers of either group, there is to Carter Center observers estimated that reported that 79–82 percent be a rotation. Domestic of polling stations had one observers reported that females voted in equal proportion to or more female poll worker. polling station workers male voters, though statistics on the In 25 to 40 percent of these misapplied this procedure. number/proportion of female voters have cases, the president of the They said that in practice, not been released by the CENI. polling station was female. some polling stations While this number of allowed 10 party agents polling station presidents is and no domestic observers. encouraging, improvements They reported the problem remain necessary to reach occurred most frequently in Bandundu province.138 gender equality. Women were also represented among The CENI accredited 1,308,124 party agents. domestic observers. CAFCO deployed 1,882 observers Candidates and political parties had limited resources from their network of women’s groups. to conduct outreach during the campaign period, saving their funds for deployment of party agents on election day. Party agents from the opposition and majority were present at almost every polling station

138 EISA-supported domestic observer networks, Dec. 16, 2011, report, p. 11

54 The Carter Center

Postelection Developments

Tabulation The Carter Center released a statement on Dec. 10 concluding that these results lacked credibility Tabulation of presidential ballots took place between because of significant problems reported by observers Nov. 29 and Dec. 9, 2011. Just as the tabulation during tabulation. process was beginning Problems ranged from on Nov. 29, presiden- general disorganization tial candidates Vital and related loss of results Kamerhe and Leon The Carter Center released a statement on to the tampering of Kengo called for results Dec. 10 concluding that these results lacked results forms by voting to be annulled in credibility because of significant problems center officials.140 The advance on the basis reported by observers during tabulation. Center also found of alleged irregularities there to be a lack of observed by their party Problems ranged from general disorganization transparency in the agents at polling and related loss of results to the tampering of tabulation process stations. Provisional results forms by voting center officials. overall. Independent results released observers and party or Dec. 9 after a three- candidate agents were day delay indicated a not accorded access to all steps of the compilation win for incumbent Joseph Kabila with 49 percent of process.141 Moreover, the results published for at least the national vote over Etienne Tshisekedi with 32 two constituencies in Katanga province were implau- percent and Vital Kamerhe with 7.7 percent.139 sible because their validity would have meant that every registered voter was able to vote on election day, that all voters voted for Kabila, and that all

Georgia McPeak voters correctly marked their ballots. The Carter Center deployed 26 teams to observe the tabulation process, covering 15 percent of the country’s CLCR sites and all 11 provinces.

139 CENI initially selected Dec. 6 because President Kabila’s mandate expired Dec. 5, but delays in the completion of counting pushed the announcement back another three days. 140 Statement of Dec. 10, 2011: Postelection Statement on the Presidential Results and Tabulation Process 141 SADC Principles and Guidelines Governing Heads of polling stations sit outside the tabulation center in Isiro with bags of Democratic Elections require governments to ensure “transparency and integrity” by permitting party agents results from their polling centers. and candidates access to the tabulation process.

55 The Carter Center 2011 Elections in the Democratic Republic of the Congo

Tabulation complications began at the level of transferring envelopes containing ballots and results from polling stations Myriam Asmani to CLCRs on Nov. 29. As in 2006, there appears to have been no system or plan in place for assuring the transport of these envelopes to the various CLCRs.142 Observers reported wide variance in transport means and securitization — a mixture of CENI trucks making rounds and personal/private transport by car or sometimes bikes and carts. This uncer- tainty and related delays made it difficult for observers to consistently accompany the transfer of envelopes. Some trips had the police escort required by law, and Bags of ballots are left unattended outside a CLCR in Kinshasa. others were missing guards needed to ensure protection of the 4,000 to 8,000 votes from each voting center. Conditions for enve- phase of the reception and registration of results lopes yet to arrive, held in voting centers awaiting forms and ballots was very badly managed by those transport, were not always secure, and observers in charge at CLCRs. A total lack of organization reported that voting center chiefs (CCVs) separated and preparation was evident at this level. Trucks from their materials.143 On Nov. 30, there were CCVs would arrive and dump mounds of bags containing from stations that voted on Nov. 28 still awaiting results and ballots, leaving the responsible CENI transport to their CLCR.144 agents to pull apart the piles in search of their bags. The management of the CLCRs was chaotic, In Kinshasa and Lubumbashi, the envelopes arriving particularly in Kinshasa and Lubumbashi. The crucial at the CLCRs from polling stations were found outside CLCRs, in open air, unprotected from the elements. In Kinshasa, after heavy rains on the night of Dec. 2, the damage was evident to all observers. Carter Center observers reported that the envelopes (containing ballots, results forms, and other docu-

Gwenn Dubourthoumieu ments) were seen on the ground, and many were walked on and opened. The protection of these envelopes, necessary to secure the secrecy of ballots

142 A CENI collection plan is referenced in Articles 69 and 70 of the electoral law. 143 “Security arrangements and safeguards against fraud: ensuring that proper arrangements have been made for the security of the polling stations and the ballot boxes/papers during and after the poll and during and after the count.” Council of Europe Handbook for Observers of Elections, para. 2.5.4 144 Under Article 67 of the electoral law, the CCV is responsible for transporting results and ballots in compliance with the plan ordered by CENI. A CENI official counts presidential ballots by lantern.

56 The Carter Center 2011 Elections in the Democratic Republic of the Congo

In Lubumbashi, the results forms were hung on lines to dry them after rain. This total disorganization of Myriam Asmani CLCRs caused in part the loss of more than 3,000 results forms across the DRC (2,000 from Kinshasa alone). The plan of retrieval and reception of the envelopes had defects, and the CENI does not appear to have attempted to identify those directly responsible for the chaos that delegitimized tabulation of presidential and legislative ballots. Even worse, the commission decided to rotate the presidents of CLCRs after the compilation of the presidential CENI officials wait outside the CLCR in Kinshasa amidst the remnants of result ballots. Though the stated intent was forms and ballot boxes. to prevent corruption, this measure appears to absolve responsibility from those CENI workers who lost presiden- tial results during the first compilation.

Georgia McPeak At the CLCR, observers witnessed serious problems at the level of initial reception of envelopes in Kinshasa, Lubumbashi, and Mbuji-Mayi. Even though many CCVs had not yet arrived at CLCRs, a backlog of CCVs waiting to turn over their envelopes to the CLCR developed very quickly. Observers in these places reported that CCVs often finally went home, leaving their envelopes outside recep- tion tents mixed with other envelopes that would be difficult to locate again when they returned. During this CENI officials sort through results at a CLCR in Isiro, Orientale province. backlog, observers also reported that CCVs were seen opening results forms. After the CLCR reception, observers and prevent voting fraud, was either not anticipated reported conditions for storing envelopes did not or not properly organized, and the commission improve. Some CLCRs kept envelopes under tents in only belatedly erected tents or distributed tarps.145 piles with no measure of order. Nevertheless, the CENI agents were forced to remain 145 “Sensitive election materials such as ballot boxes and ballot papers on site for multiple days without provision for proper should be stored and delivered under strict security in order to prevent food, water, shelter, or sanitation. electoral fraud.” EISA and Electoral Commission Forum of SADC, PEMMO, p. 25

57 The Carter Center 2011 Elections in the Democratic Republic of the Congo

Carter Center observers in Goma, Kisangani, Lubumbashi, and Kinshasa reported additional problems of transpar- ency with CLCR workers who would not

consistently share data entry progress Hélène Helbig de Balzac and information with observers and party witnesses. Transparency on the part of the CENI at the CLCR level is particularly crucial because the strongest potential for error or manipulation of election results is at the tabulation stage.146 Observers in Goma noted there were more communication and informa- tion sharing in the early days of tabula- Empty ballot boxes are left outside the CLCR in Kinshasa. tion work, and it was not clear why the approach of Goma CLCR workers changed. Several teams reported that the processing several other locations stayed open 24 hours in order of “difficult cases” (e.g., arithmetic errors on the tally to meet the Dec. 5 deadline. Carter Center observers sheet or a missing signature from the polling station noted that CLCR workers showed dedication and president) occurred in a private room, off-limits to commitment by working long hours in difficult party agents and conditions. In observers. Domestic most cases, CLCR observers in the workers had limited EISA network access to food or reported that they The Carter Center’s formal request to the CENI for water and worked were expelled from access to the national data center was never answered, long hours in small some CLCRs on and subsequent attempts by the Center to gain access rooms with no the grounds that ventilation or air they needed new to the center were unsuccessful. No other observer conditioning. observer accredita- groups were able to receive access either. Transmission of tion. Observers also provincial results reported that the to the central posting of district server from each results outside the CLCR center was not done in all SEP (after transmission of district results to the cases.147 This is also an important and visible indi- SEP) was planned to be done via Internet using cator of transparency and a requirement under Article very-small-aperture-terminals (VSATs). Almost all 70 of the electoral law. of the CLCRs visited by Carter Center observers Tabulation was well-conducted in some locations. For example, CLCRs in Oriental province finished 146 Election administrators should “ensure that information is tabulation two days early. These CLCRs were collected, compiled, and published in a way that is systematic, clear, and described as well-organized and managed. The presi- unambiguous.” International IDEA, The Code of Conduct: Ethical and Professional Administration of Elections, p. 14 dential tabulation was completed in five days, and 147 “There should be immediate release of official election results on legislative tabulation was expected to be completed in completion of counting.” SADC Parliamentary Forum (PF), Norms and a similar time frame. The CLCR in Mweni-Ditu and Standards for Elections in the SADC Region, par. 11.ii 58 The Carter Center 2011 Elections in the Democratic Republic of the Congo

had VSATs; however, they were not operational other observer groups were able to receive access in advance of the announcement of presidential either. In theory, had physical copies of the polling results.148 station results forms been delivered to Kinshasa, The apparent failure to use VSATs consistently the commission leadership would have been able marked another lost opportunity for the CENI to to cross-check the processed tally forms with their strengthen the verification and transparency of the electronic scans. It appears that no such verification results process. CENI President Mulunda assured the was conducted, and Carter Center observers found Carter Center delegation leader President Banda only sporadic use of VSATs in practice. Following the shortly before election day that all 169 CLCRs had elections, the CENI leadership maintained that they fully operational VSATs and that the CENI head- had no legal requirement to publish polling station quarters would receive an electronically scanned copy results, only to receive the tabulated results from the of each polling station’s results.149 lower level, namely the provinces, and below them The Carter Center’s formal request to the CENI the CLCR. The CENI was unable, or unwilling, to for access to the national data center was never share with the Center what, if any, verification of answered, and subsequent attempts by the Center final results they conducted. to gain access to the center were unsuccessful. No

Table 8: Results Void/ Registered Number of Expressed Joseph Etienne Vital Leon Province blank voters votes votes Kabila Tshisekedi Kamerhe Kengo ballots Kinshasa 3,287,745 1,868,549 55,140 1,813,409 544,529 1,162,183 67,288 13,023 Bas-Congo 1,502,939 883,185 37,096 846,089 168,000 626,482 13,404 4,490 Bandundu 3,553,322 2,012,832 78,634 1,934,198 1,419,619 378,182 32,251 26,119 Équateur 3,960,643 2,015,754 79,821 1,935,933 238,169 654,425 73,311 772,202 Orientale 3,886,524 2,223,460 168,313 2,055,147 1,279,912 282,184 155,232 58,311 Nord-Kivu 3,003,246 1,913,685 76,961 1,836,724 712,317 389,350 423,376 8,632 Sud-Kivu 2,022,960 1,402,710 62,129 1,340,581 599,825 132,826 558,564 3,804 Maniema 874,809 525,044 24,901 500,143 433,482 14,548 36,308 1,063 Katanga 4,627,302 3,224,483 86,531 3,137,952 2,823,234 221,922 34,297 4,514 Kasaï-Or. 2,643,905 1,432,345 45,915 1,386,430 366,380 976,145 5,337 3,392 Kasaï-Occ. 2,661,245 1,412,044 55,546 1,356,498 295,477 1,026,528 4,004 2,812 Total 32,024,640 18,914,091 770,987 18,143,104 8,880,944 5,864,775 1,403,372 898,362 Percent 48.95% 32.33% 7.74% 4.95% total

148 Observers in Mbuji-Mayi reported the VSAT was operational and in 149 During the tabulation process and in the announcement of use. The majority of CLCRs presumably reported their results to the SEP provisional results, CENI did not cite the use of VSATs, nor did they by phone. provide The Carter Center with any information pertaining to their use. In April 2012 at its own evaluation exercise, CENI claimed that 70 percent of VSATs had been operational. No other details on their use were available at the time of writing this report.

59 The Carter Center 2011 Elections in the Democratic Republic of the Congo

Presidential Election Results Preliminary results of the presidential elec-

tions were announced by the CENI on Dec. Myriam Asmani 8, 2011, before representatives of political parties and the diplomatic community. A public reading of disaggregated results by constituency was done by the president and vice president of the CENI. Table 8 shows the results as announced by the CENI for the four candidates who obtained the most votes. As early as Dec. 2, the election commis- sion began to publish partial results for the presidential elections. Although not mentioned in the electoral law, this A young man waves a flag of President Joseph Kabila in the Kinshasa streets publication was a positive measure and is following the announcement of results. to the credit of the CENI. Broken down into five releases, this diffused the potential for violent clashes in response to both the national average voter turnout, for a total of 1.8 results and the postponement of complete provisional million votes. Even the categories of null or blank results, which were not ready by Dec. 6. votes outperformed the vote totals for all other The complete provisional results announced Dec. 9 presidential candidates combined in these districts. revealed several aspects that discredit the integrity of • The vote by derogation and lists of omitted voters the results, which were referenced in the postelection was badly managed by the CENI. No official figures statement of The Carter Center on Dec. 10, 2011.150 have been published by the CENI on numbers of • The level of participation in the province of derogation and omitted voters. While this measure Katanga was much higher than the national permitted eligible voters to vote who would not average. The participation rate was almost 100 otherwise, it also increased the risk of multiple percent throughout the province with the excep- voting and voting from military, police, or other tion of Lubumbashi. This level of participation ineligible voters who managed to obtain voter iden- when compared with the rest of the country is tification cards through fraudulent registration implausible. or purchase. • The four Katanga districts of Kabongo, Malemba- • In the two Kasai provinces, the rate of voter partici- Nkulu, Bukama, and Manono recorded voter partic- pation was between 37 and 73 percent, consistent ipation rates of 100 percent; rates of invalid ballots with the national average. However, the number of between 0.11 and 0.46 percent, well below the invalid ballots was well above the national average, national average; and ballot results reaching 100 most notably in Ilebo, which had a rate of percent for Kabila. The four districts alone comprise 6.24 percent. almost 1 million of the total votes for incumbent • The missing results from 3,000 polling stations President Joseph Kabila. (2,000 in Kinshasa) represented 1.4 million • In 10 more Katanga districts, Joseph Kabila 150 Statement of Dec. 10, 2011: Postelection Statement on the received 94 percent or higher, also with higher than Presidential Results and Tabulation Process

60 The Carter Center 2011 Elections in the Democratic Republic of the Congo

potential votes lost and discredit the CENI arrange- this schedule. Carter Center observers concluded ments for retrieval of polling station results (the their work Dec.12. Though the Center did not commission did not share its plans for retrieval of directly observe at CLCRs for legislative tabulation, results with partners). The absence of coordination it remained in close contact with Congolese civil between the retrieval and the management of the society and party agents monitoring the process. CLCRs was visible by the disorganization at the Their assessment was that the organization of basic step of reception at the CLCRs, even before tabulating work improved since the presidential the work of tabulating the results began. tabulation. However, they emphasized that ques- tions regarding the integrity of the tabulation The Supreme Court of Justice established an office process remain. The election within the court registrar to commission issued a Dec. receive all disputes within the 21 declaration announcing required period. Vital Kamerhe Many legislative candidates alleged the suspension of tabulation was the sole presidential owing to the large number of candidate to file a motion chal- that winners announced in the complaints they were receiving lenging the provisional results provisional results did not reflect and dispatched technical of the presidential election. the records of party agents and support and supervisory teams After a public hearing, the have filed disputes before the to tabulation centers. On Dec. Supreme Court, in its judgment Supreme Court of Justice. 28, the CENI issued a second of Dec. 16, officially declared declaration, announcing that Joseph Kabila re-elected by a tabulation would restart along simple majority for a five-year with the public release of interim results. term with 8,880,944 votes, or 48.95 percent. Joseph Many legislative candidates alleged that winners Kabila was sworn in on Dec. 20, 2011, before the announced in the provisional results did not reflect Supreme Court, which performed the oath prescribed the records of party agents and have filed disputes by the constitution. before the Supreme Court of Justice. Candidates Etienne Tshisekedi did not wait for the final results who have actual copies of results forms will have to deny the figures announced by the CENI and compelling evidence of error or wrongdoing at the demand Kabila’s resignation. He proclaimed himself tabulation level. A candidate from Bandundu prov- as the elected president. He chose not to challenge ince submitted results copies to The Carter Center the results before a Supreme Court that he considered in January. Review of these PVs showed very high biased toward the ruling party. Under de facto arrest numbers of derogation voting. (Bandundu was a prov- at his residence in Limete, the UDPS leader chose to ince reported to have larger numbers of derogation pursue recourse through popular support. However, voting by EU.) In some cases the number of deroga- in the weeks following the election results, his media tion voters greatly exceeded the number of registered presence and the impact of his public appeals were voters.151 less visible. The other candidates in the presidential On Jan. 13, 2012, the announcement of the election chose not to join forces to challenge the remaining provisional results was postponed for results and sought other means of protest. seven days for districts in the provinces and 14 Legislative Results days for the city of Kinshasa. By Jan. 26, the CENI had announced results for 155 districts, The CENI tabulation of legislative ballots followed the completion of the presidential results with a dead- 151 See Appendix for Carter Center Feb. 23, 2012, statement: Democratic Republic of the Congo Legislative Election Results line of Jan. 12, 2012, though it was unable to meet Compromised.

61 The Carter Center 2011 Elections in the Democratic Republic of the Congo

excepting Kongolo, Popokabaka, Rutshuru, Mbuji-Mayi, Kinshasa’s Myriam Asmani Lukunga district, Mt. Amba, Tshangu, and an additional seven districts where the CENI said tabulation was impossible owing to election-day violence.152 On Feb. 1, 2012, the commission published provisional legisla- tive results for 162 of the 169 districts and proposed a cancellation of the results in the seven districts. Several problems arose from this A CENI official searches a legislative ballot for the marked candidate during the counting process. proposed cancellation. First, the presidential results from those seven CLCRs already had been in the assembly by a single member of Parliament, included in the presidential tally. It is unclear how and more than 74 parties have fewer than five seats. election-day violence made it impossible to tabulate The 12 parties with the largest representation are the legislative results but not the presidential results People’s Party for Reconstruction and Democracy since the two processes were simultaneous. There is (PPRD), Union for Democracy and Social Progress no documentation of significant violence at polling (UDPS), People’s Party for Peace and Democracy stations or the CLCRs (which were not in any case (PPPD), Social Movement for the Renewal (MSR), functioning until after election day). In the absence Movement for the Liberation of Congo (MLC), of compelling evidence, the proposed suspension of United Lumumbist Party (PALU), Congolese Union results for these locations must be owing to some for the Nation (UNC), Alliance for Congo’s Renewal other reasons, perhaps reflective of the administrative (ARC), Alliance of Congo Democratic Forces chaos that undermined the credibility of tabulated (AFDC), Awakening of Conscious for Work and results elsewhere. Second, the CENI request does not Development (ECT), Rally for the Reconstruction exempt them from releasing the figures at its disposal of Congo (RRC), and Movement for the Integrity for the districts in question. Third, the electoral law of the People (MIP). Independents obtained a total does not permit a CENI challenge of results before of 16 seats. the Supreme Court; therefore, the commission cannot A close reading of legislative election results seek annulment of results. leaves certain questions about the credibility of the The legislative results announced by the CENI results. The number of voters differs between the two resulted in a National Assembly of 98 political parties. This large number of parties fragments the 152 The seven districts are Kiri in Bandundu, Demba in Kasai-Occidental, Ikela in the province of Équateur, Kole and Lomela in Kasai-Oriental, political scene. Forty-five parties are represented Masisi in North Kivu, and Punia in Maniema.

62 The Carter Center 2011 Elections in the Democratic Republic of the Congo

elections in some districts, most notably for Walikale, political parties that were running for office shows the where a difference of 28,810 was recorded between fragility of the political class and its attachment to the two votes, and Malemba-Nkulu in Katanga, ethnic and territorial ties, which is contrary to Article which recorded a difference of 5,405. The rate of 5 of the Law 04/002 of March 15, 2004, on the organ­ invalid ballots is also noteworthy, reaching almost ization and functioning of political parties. 10 percent in the district of Tshangu in Kinshasa. Katanga recorded the lowest rates of invalid ballots Electoral Dispute Resolution in both presidential and legislative elections. The The establishment of a mediation committee to discrepancy in the rate of invalid ballots is also note- address complaints from political parties and candi- worthy, as in the case of Tshangu district of Kinshasa dates, as planned by the CENI Code of Conduct, where the rate reached 10 percent in the legislative could have been a positive initiative to mitigate poll, while the presidential ballot yielded just 3.6 conflicts and to open dialogue between presiden- percent. This difference is possibly reflective of the tial candidates and political parties. Regrettably, enormous complexity of a legislative ballot with 1,575 this institution did not fulfill completely its role. candidates for 15 seats. However, Kinshasa, notable Its installation by the CENI, an institution already as an area of Tshisekedi support, stands in contrast lacking credibility in the eyes of opposition political to Kabila’s vote bank in Katanga that recorded the parties, exposed the mediation panel to this lack of lowest rates of invalid ballots in both presidential confidence. There is little public record of significant (2.7 percent) and legislative elections (5.6 percent). interventions by the mediation panel. Other patterns are evident in the district results, but more thorough analysis is impossible unless the CENI Presidential Disputes releases polling station results. The procedure to challenge electoral results under This divided assembly composition clearly advan- Articles 73 to 76 of the electoral law was modified in tages Kabila. More than 340 members of Parliament 2011 from an adversarial procedure, where the parties are members of his ruling coalition and under the engaged in debate and the judge was limited by the leadership of his party, while opposition parties are arguments they exchanged before a public audi- divided among their 110 representatives. ence, to an inquisitorial procedure, where the judge For the opposition, of the 41 deputies elected controls the line of questioning to establish the truth. from UDPS, 25 were elected in Kasais, with a similar In the latter, the procedure is written, and a public configuration for the UNC, and 10 of 17 deputies audience is not required. This change of procedure were elected in Kivus. None of 94 parties represented gave more control to the Supreme Court to determine in the National Assembly succeeded in having a the validity of election results. However, the Supreme national representation. This fragmentation of the Court continued to use the common civil procedure political landscape with the number of candidates and by putting parties in competition while reaffirming

Table 9: Presidential Disputes

Time frame to Time frame to Election results Responsible court submit complaint settle the case Two days after the Seven days after receipt Presidential election announcement of provisional Constitutional Court (Article 74) results (Article73)

63 The Carter Center 2011 Elections in the Democratic Republic of the Congo

the character written by the procedure. Consequently, that is challenged. Candidates are not opposed to one the hearings for challenges to the results of the presi- another, as in an adversarial procedure. The hearing dential election were chaotic. The Supreme Court ended in the departure of Vital Kamerhe’s lawyers, took restrictive interpretations of texts and did not who denounced what they described as a “parody appear to make use of the training received to prepare of justice.” The ruling given by the CSJ rejected for this litigation. all arguments from the plaintiff and confirmed the Under the terms of Article 75 of the electoral victory of Joseph Kabila. The Carter Center regrets law, the court has real power to correct the results in that this ruling still has not been published. the case of clerical error, Legislative Disputes previously awarded to the election commission by The settling of disputes for Article 71, which attributed the legislative elections is it a power of correcting Under the terms of Article 75 of governed by the same rules results forms. Additionally, the electoral law, the court has real of procedures and answers an individual has the right power to correct the results in the to the same obligations as to an appeal to competent case of clerical error, previously those of the presidential national organs against acts elections. It is defined by of violating fundamental awarded to the election commission by Articles 73 to 76 of the rights recognized and guar- Article 71, which attributed it a power electoral law. Only the anteed by law.153 of correcting results forms. deadlines for submission On Dec. 15, 2011, a and treatment change. public hearing was held During the numerous by the CSJ at the Court postponements by the of Appeals in the Gombe district of Kinshasa. The CENI to announce legislative results, candidates hearing began at 1:00 p.m. after a four-hour delay, and parties looked for alternate dispute resolution although states are obligated to ensure individuals mechanisms in the interim, before the official dispute the right to be tried within a reasonable time.154 The period with the Supreme Court could begin. Parties court registrar announced in error the case of Joseph submitted complaints and narratives to the CENI, Kabila against Vital Kamerhe. In electoral disputes, MONUSCO, and The Carter Center concerning it is the administrative act of proclamation of results the tabulation process.

Table 10: Legislative Disputes

Time frame to Time frame to Election results Responsible court submit complaint settle the case Eight days after Two months starting from Legislative elections announcement of provisional Constitutional Court the date of submission to results (Article 74) the court (Article 74)

153 “Every individual shall have the right to have his cause heard. This 154 “Every individual shall have the right to have his cause heard. This comprises: (a) the right to an appeal to competent national organs against comprises the right to be tried within a reasonable time by an impartial acts of violating his fundamental rights as recognized and guaranteed court or tribunal.” Article 7, AU ACHPR by conventions, law, regulations and customs in force.” Article 7, AU ACHPR

64 The Carter Center 2011 Elections in the Democratic Republic of the Congo

In response to these complaints, the CENI sent only after the publication of preliminary results. The supervisory missions to some CLCRs endowed with original version of the electoral law awarded the authority to check and, if CENI power to correct results necessary, order recounts.155 forms, but by repealing Article The election commission 71, Parliament removed the broadly interpreted its Nevertheless, these supervisory CENI’s power of interven- 156 role of CLCR supervision missions, though technically illegal, tion. Nevertheless, these in overseeing recounts of supervisory missions, though votes, but this treatment of may still have been a positive technically illegal, may still disputes by the CENI was initiative to address disputes and have been a positive initiative done extralegally, because the save the legislative tabulation from to address disputes and save commission was conducting even greater harm. the legislative tabulation from work reserved for the court even greater harm. system that should take place

155 CENI press release, Jan. 18, 2012 156 Article 71 of the electoral law, before the June 25, 2011, modification

65 The Carter Center

Conclusions and Recommendations

t the invitation of the Independent National deadline and met the Congo’s international obliga- Election Commission (CENI), The Carter tion to hold periodic elections.157 With a few excep- ACenter deployed an international elec- tions, the election process was peacefully conducted. tion observation to the Democratic Republic of However, voting and the tabulation process were the Congo’s Nov. 28, 2011, presidential and leg- marred by serious irregularities, undermining the cred- islative elections. During its six-month presence, ibility of the presidential and legislative results. The Carter Center deployed long- and short-term The pressure to hold elections on Nov. 28 observers throughout the 11 provinces to observe the to respect the constitutional deadline may have preparation and conduct of the elections.The Center contributed to the flawed polling station map and observed election preparations, compressed period for the including candidate nomination recruitment and training of and the campaign period, along poll workers. However, the lack with voting and tabulation of Voting and the tabulation of engagement with political results. The Center’s mission process were marred by serious parties and the refusal to allow issued a substantial pre-election opposition political party access report followed by two postelec- irregularities, undermining the to the central server reflect tion reports in December 2011. credibility of the presidential and insufficient political will on Following the departure of the legislative results. the part of the CENI to hold Center’s long-term observers transparent and credible elec- in mid-December, members of tions. The lack of transparency the core team followed electoral developments and shown by the CENI should prompt reflection on the returned to Kinshasa in January 2012 to be pres- commission’s political composition and its capacity ent for the conclusion of tabulation of legislative to be independent and credible for the next round of results (detailed in a February 2012 public report). elections.158 Throughout the mission, Center observers met Incumbent President Joseph Kabila was re-elected regularly with the CENI members, representatives in a single round of voting with 49 percent of of political parties, civil society organizations, the the vote, followed by Etienne Tshisekedi with 32 diplomatic community, and Congolese citizens. The percent and Vital Kamerhe with 7.7 percent. Voter Center thanks all those with whom it met. This final turnout was 58 percent. The Carter Center finds the report summarizes the Center’s overall observations from the entire mission. The DRC faced significant challenges in the 157 The DRC has ratified a number of international and regional treaties through which it has obliged itself to follow certain key human rights overall organization of the elections and in meeting standards. Article 215 of the Congolese Constitution importantly notes a constitutional deadline of Dec. 6, 2011. The late that international treaties and covenants that the DRC signs or ratifies are superior to any national laws, barring any formal reservations the DRC establishment of the CENI in early 2011 and a divi- may have expressed. sive and partisan political context created additional 158 “An independent and impartial authority that functions transparently pressures on the successful organization of the elec- and professionally is internationally recognized as an effective means of ensuring that citizens are able to participate in a genuine democratic tions. Despite many missed deadlines in the electoral process, and that other international obligations related to the democratic calendar, the CENI met the overall constitutional process can be met.” UNHRC, General Comment 25 para. 20

66 The Carter Center 2011 Elections in the Democratic Republic of the Congo

presidential and legislative election results to lack The following conclusions and recommendations credibility. The problems observed in the tabula- are based on the Carter Center’s empirical observa- tion and announced results were compounded by tions included in this report and are provided to help inadequate access for observers at multiple compila- strengthen the conduct of the DRC’s future elections. tion centers around the country and no official The Carter Center once again thanks the CENI access to the national results center in Kinshasa. for the invitation to observe the 2011 presidential Mismanagement of the results process compromised and legislative elections and all those with whom the the integrity of the presidential and legislative elec- Center’s international election observation mission tions, and The Carter Center is therefore unable to members met. provide independent verification of the accuracy of To the CENI: the overall results or the degree to which they reflect the will of the Congolese people. 1. Electoral Calendar The DRC faces a political dilemma. By definition, Members of the CENI leadership took office a contested election result lacks the confidence of less than one year before the legislative and many, and perhaps a majority, presidential elections. This of the people. Moreover, the time frame was insufficient in institutions designed to safe- consideration of its scope of guard that integrity, notably the responsibilities and the size CENI and the Supreme Court, The DRC faces a political of the DRC. The time frame lack credibility in the eyes of dilemma. By definition, a given to the CENI to revise many Congolese. Restoring this contested election result lacks the the voter registry and organize credibility is an urgent matter, combined elections was not and the Center encourages all confidence of many, and perhaps realistic. The Center recom- Congolese to apply themselves a majority, of the people. mends that the newly elected to more inclusive political National Assembly allow the dialogue, a thorough review of election commission at least 18 the electoral administration, months for electoral prepara- and the use of legal means so that the people of the tions in advance of the next presidential and Congo will be able to claim their rights. To this end, legislative elections. The Carter Center recommends an evaluation and in-depth examination of the entire electoral process, 2. The CENI Structure with the participation of all political party actors, and The partisan nominations of the CENI leaders, including transparent reviews of polling-station-level along with absence of civil society representation, results and other key electoral information. If political allowed a politicization of its decisions by majority dialogue and an inclusive assessment of the electoral and opposition political party representatives. process are successful, potential outcomes could be a This did not permit the CENI to sufficiently fulfill decision to rerun some or all of the elections or some its mandate of independence. The Carter Center other form of political accommodation to establish recommends a re-examination of the composition a legitimate governing authority. In addition, such of the CENI leadership and efforts to institute a review is essential to prepare for future elections, a structure that represents the full spectrum of including provincial and local elections due to take Congolese political actors and civil place during 2012–2013. society representation.

67 The Carter Center 2011 Elections in the Democratic Republic of the Congo

3. The CENI Staff is aware that many political actors will seek to The CENI decision to replace executive provin- politicize administrative decisions and that this cial secretaries and heads of local offices a few imposes additional pressures on the CENI and weeks (and in some cases only a few days) before their staff. However, failure to address these issues the elections adversely affected both advance as they arise can lead to growing political disputes preparations and the physical delivery and tabula- and loss of confidence in the CENI, undermining tion of polling station results. The Center strongly the overall credibility of its efforts to conduct a encourages the commission to keep its technical genuine election. teams on the ground and avoid the transfer of Similarly, the CENI’s public relations strategy staff who have essential knowledge of the can also be strengthened. Weekly press confer- local environment. ences would provide a regular point of contact for the commission to share 4. Voter Registration Audit the status of election prepara- There is no legal obligation tions and possibly reduce the under Congolese law to give individual burdens on the CENI political parties access to The Carter Center urges the members, who field many sepa- the central information CENI to set a firm date to rate requests for information server holding voter regis- and meetings. tration data. However, in enable a timely audit of voter consideration of interna- registration data by political 6. Polling Center Management tional transparency norms opposition representatives. The management of polling and the interest of productive centers and especially the voter relations with political stake- list needs to be improved. The holders, The Carter Center CENI can do so by assigning urges the CENI to set a firm date to enable teams of election officials to serve as information a timely audit of voter registration data by officers at larger polling centers where there are political opposition representatives. Such an multiple polling stations. Too many Congolese audit would be evidence of transparency in the voters were unable to find their correct polling work of the CENI as provincial and local elections station. The commission can also improve polling approach and could enhance confidence in the center security by ensuring that traffic flow is voter register as well as the independence of the managed to get eligible voters to the correct election commission. polling station and discourage those who have voted from lingering in the immediate vicinity of 5. Public Communications polling stations. More generally, the CENI can improve its polit- The CENI should also take all necessary ical party and public communications strategy. measures to ensure that polling stations have full The commission should consider the creation of and accurate lists of registered voters. The deci- a political party liaison structure that operates sion to allow voters omitted from the register to on a regular basis and schedule (e.g., weekly or cast a ballot opened the possibility for multiple biweekly meetings) at the national and provincial voting and for categories of noneligible citizens level (and possibly districts) to serve as an infor- to vote. mation clearinghouse and provide an opportunity for questions to be answered. The Carter Center

68 The Carter Center 2011 Elections in the Democratic Republic of the Congo

7. Observer Access possible transparency of the results. The CENI’s Carter Center observers received appropriate announcement of partial provisional results was access to all phases and aspects of the electoral a second positive approach to ensuring maximum process with the important exception of local public information as results were confirmed. tabulation centers. On several occasions, observer Further, the publication of presidential results access to tabulation centers was blocked, or once by polling station was also a step in the inside, observers were unable to see what was right direction. happening in key locations of the center or steps However, the election commission did not of the procedure. Where physical space limitations publish the legislative results by polling station, were a factor, the CENI should plan tabulation eliminating the possibility of Congolese voters center selection and layout to provide observers verifying their own local results. Moreover, with appropriate space to watch the proceedings. although the CENI claimed to have installed Where some steps of the tabulation process appear scanning devices (VSAT) in every tabulation to have been conducted out of sight, such as center, these were not operational everywhere, deliberations over disputed polling station tally nor did the CENI produce any record of their sheets, party witnesses actual use to double-check and observers should be results as processed at tabula- accorded appropriate tion centers against scanned ability to observe. copies of the original tally sheets. The election proce- 8. The CENI Staff However, the election commission dures call for multiple copies Training did not publish the legislative results of tally sheets to be placed Recruitment and training by polling station, eliminating the in separate sealed envelopes of polling officials should possibility of Congolese voters to allow for this type of veri- place more emphasis on fication, and therefore, this the procedures to control verifying their own local results. check should be put to use. potential multiple voting A polling station numbering (such as application of scheme should be established ink to the voter’s finger and used to organize and reference the complete after a ballot is cast) and especially to counting set of polling station results. and tabulation. Perhaps owing to the accumula- tion of missed deadlines in the election calendar 10. Tabulation of Results or other reasons, possibly including the poor phys- Many tabulation centers appear to have produced ical layout or inadequate capacity of tabulation credible tallies of polling station results to the centers to manage the influx of sensitive election satisfaction of political party witnesses and other materials, it appears that the CENI planning and observers. However, many other tabulation training of tabulation center staff were inadequate. centers, especially in Kinshasa and Lubumbashi, were poorly planned and chaotic in their opera- 9. Transparency of Results tions, compromising the integrity of the results The posting of polling station results at stations process in those areas. The CENI must develop following the count is a welcome practice, and better advance planning, physical layout, and effi- the CENI should continue to ensure that the cient and secure reception processes to allow for maximum steps are taken to ensure the greatest

69 The Carter Center 2011 Elections in the Democratic Republic of the Congo

rapid, secure, and transparent tabulation. These 13. Media Monitoring goals can be achieved with improved site selection Media play a central role in the political life and preparation to ensure that as election workers of any country, particularly during elections, and results arrive at tabulation centers, they are as a means to publicize campaigns and share protected from the elements, handled by multiple voter information about the polls. The Center intake desks, and their materials remain intact and welcomes the creation of the CSAC but hopes well-organized. Appropriate space and access must that its performance will improve in subsequent be built into the physical and operational design elections. The Superior Council for Audiovisual to allow party witnesses and observers unobtrusive Communications (CSAC) was established too late access to every stage of the tabulation process. in the 2011 election cycle to become fully opera- tional, and its resources should be commensurate To the Government and National Assembly: with its responsibilities. 11. Electoral Law Reform Effective media monitoring Should it be determined and the ability to sanc- that the current electoral tion where appropriate law does not provide The Superior Council for Audiovisual require advance planning the appropriate guid- Communications (CSAC) was and resources. Significant ance to the CENI to discrepancies in the coverage implement important established too late in the 2011 election cycle to become fully operational, and of presidential candidates measures to improve the and parties expose major bias electoral process, such its resources should be commensurate in the Congo’s news media, as those outlined above, with its responsibilities. and these must be rectified Congolese legislators to provide Congolese voters should consider legal with better access to impar- reforms to improve the tial information and the security and integrity of polling and the transpar- ability to make informed choices. CSAC’s impar- ency of election results tabulation and publication. tiality must also be considered, and appropriate 12. Out-of-Country Voting appeal procedures should be provided to parties The Congolese diaspora consists of very and individuals under its review. politically engaged citizens, as shown by the 14. Representation of Women numerous demonstrations organized abroad The presence of at least 50 percent women in during the election campaign. Eligible Congolese Parliament is part of international commitments voters abroad are entitled to exercise their right to undertaken by the DRC. Institutions have to vote as equal citizens. For this reason, it is incum- be given the means to reach this objective by bent on Parliament to modify the electoral law 2015. As such, it is recommended that the to authorize absentee voting for presidential elec- Parliament set up financial penalties for parties tions. In order to vote abroad, provision must also and independ­ent lists that do not present women be made to allow enrollment in the voter registry as candidates and to impose a strict parity on in embassies. ballot papers.

70 The Carter Center 2011 Elections in the Democratic Republic of the Congo

15. Public Funding national tribunal for acts that violate their rights Public funding of political parties will be appli- and freedoms. Aside from several incidents cable for the first time in the next presidential and during the campaign period where candidates legislative elections. The conditions to access this and supporters were blocked from reaching their funding should be eased; the requirement to have meeting destinations and several other deplorable a bank account with a credit balance of 2,500,000 acts of violence, the election process prior to elec- FC is an obstacle to financing the smallest parties tion day was largely peaceful. The postelection even if they won seats in Parliament. The Carter period was a different matter, with blockage and Center recommends that Parliament reduce or disruption of people’s rights to peaceful assembly eliminate the requirement to have this minimum and multiple incidents of security forces firing bank balance. upon unarmed civilians, leaving scores dead and injured. Unacceptable restrictions on freedom of 16. Campaign Spending movement or assembly for presidential candidate Campaign spending allows candidates to occupy Tshisekedi and others after the election are public space in order to gather the most votes without cause. during elections. Previous elections have shown The Center recommends the intensification of that candidate spending is so disproportionate ongoing efforts to sensitize the security forces to that it introduces massive imbalances in the human rights in the discharge of their duties as campaign. The Center therefore recommends that well as directing more resources to train security Parliament establish an upper limit to campaign forces in nonlethal crowd control. spending to balance the weight of the respective candidates and parties on the campaign trail. To the Supreme Court: No laws regulate the campaign accounts of 18. Transparency and Publication of Proceedings independent candidates and political parties. The first president of the Supreme Court of Justice The amounts spent are unknown, and campaign was not cooperative with the Carter Center accounts are neither published nor verified. Lack mission during the electoral process. Currently the of publication strengthens rumors of personal only court with jurisdiction to rule on electoral enrichment and use of state resources to finance disputes, it demonstrated a lack of transparency, election campaigns. The Center recommends which compromised its role as impartial arbitrator that Parliament introduce legislation to ensure and final judge of the election. the publication of candidates’ financial state- ments before and after their mandate, as well as 19. Establishment of Constitutional Court verification by the Parliament and publication The Center recommends that the DRC president of campaign spending within one month of the accelerate the establishment of the constitu- conclusion of the concerned election. tional court, as called for under the constitution. Training for the high magistrates of this new court 17. Security of the People in electoral law and dispute procedures and consti- States are to take measures to promote the tutional law will be necessary for this court to play principles of the rule of law, freedom from completely its role of institutional arbitrator for discrimination, the security of the person, and the constitutional questions. right to an effective remedy before a competent

71 The Carter Center 2011 Elections in the Democratic Republic of the Congo

To the People of the Congo: Moreover, many tens of thousands of Congolese 20. Right to Participate in Public Affairs participated in these elections as election offi- States are obligated to take the steps necessary cials, party witnesses, and impartial, nonpartisan to give effect to human rights, but the people observers, and the Center hopes that these efforts also bear responsibili- will continue to enjoy the ties in the exercise of support of the government, their rights. The CENI, political parties, people of the DRC and international donor are commended for The people of the DRC are commended community in future elec- their participation in for their participation in a largely peaceful tions. It is also hoped that a largely peaceful elec- election process, several serious incidents the new government and tion process, several of violence notwithstanding. political parties in the serious incidents of governing coalition and violence notwith- in the opposition will standing. Enthusiasm create more structures for for the electoral process was high, evident in the the people of the Congo 11 presidential candidates and 18,500 candidates to interact with their government and their standing for the National Assembly. Some 32 elected representatives. million Congolese registered as voters, and voter turnout was reasonably high at nearly 60 percent.

72 The Carter Center

Appendix A Acknowledgments

he Carter Center gratefully acknowledges the the respect afforded The Carter Center in the DRC support of the organizations and individuals by both national and international officials is a testa- Twhose vital contributions enabled the elector- ment to the respect she earned through the quality al observation mission in the Democratic Republic of of her work. Congo. The United States Agency for International The Kinshasa staff operated effectively under a Development (USAID) and the Royal Embassy of fluid and uncertain electoral environment. Mission the Netherlands continued their history of strong sup- security officer Jules Lalancette designed and managed port for Carter Center missions. Their contributions the security for a mission of more than 60 members, enabled a sustained Carter Center election engage- including observers, staff, and mission leadership, over ment in the DRC from August 2011 through February extraordinary deployment distances. Pedro Teixiera 2012. served as director of operations, managing office and The Center is especially grateful for the support in-country operations and observer transport and of U.N. SRSG Ambassador Roger Meece and the accommodation. Logistics support was provided by staff of MONUSCO, who assisted the Center’s Augustin Kibassa. Legal analyst Stephane Mondon observers with access to U.N. aircraft for travel contributed his legal expertise and knowledge of elec- throughout the DRC as well as regional security toral processes in the DRC. Valerie Harden served as briefings once deployed. LTO coordinator, managing the deployment of and The Center expresses its appreciation to the reporting by long-term observers. Additional support government of the Democratic Republic of the Congo was provided by Eugene Salamu, field financial and the National Independent Election Commission officer; Anne-Marie Bipendu, administrative officer; for inviting the Center to observe the elections. The and Christian Bisimwa Mulume, field press officer. Center acknowledges the dedicated contribution of The Carter Center thanks the long-term observers the Congolese national observers and their important for their invaluable work in bearing the weight of role in bearing witness to the second presidential providing political and logistics reports from areas and legislative vote in their country since the throughout the DRC over the course of many recent war ended. months. These individuals worked in diverse and The efficacy of Carter Center missions is a product uncertain conditions, demonstrating a deep commit- of the excellent staff and leadership whose dedication ment to the success of the Carter Center mission and has consistently given excellent representation to to the furthering of democracy in the Democratic the Center overseas. A special thank-you goes to Republic of the Congo. His Excellency Rupiah Banda, for his time and The Carter Center’s Democracy Program in experience in serving as mission co-leader with Dr. Atlanta had the overall responsibility for managing John Stremlau, Carter Center vice president for peace the project to the Democratic Republic of the Congo, programs. The Center also acknowledges the distin- beginning with the initial assessment in May 2011 guished leadership of field office director Baya Kara through this final report. The project was managed in Kinshasa. The Carter Center has benefited from by Dr. David Pottie, associate director. A number the experience of Baya Kara in prior missions, and of staff and interns provided crucial support to the

73 The Carter Center 2011 Elections in the Democratic Republic of the Congo

mission, including Jennifer Russi, Tynesha Green, Center would not have been able to implement such Olivia Fernandez Owens, Rahul Garabadu, Anna a successful project. Taquet, and Gina Chirillo. They contributed to the This report was written by Baya Kara, Valerie smooth execution of the mission through logistics, Harden, and Stephane Mondon based on input from research, and delegation preparation both in Atlanta the entire delegation. David Pottie, David Carroll, and on the ground in the DRC during the elections. and Jennifer Russi edited and prepared the final Without this handful of staff and interns alike, the version of the report.

74 The Carter Center

Appendix B Terms and Abbreviations

AMP Alliance for the Presidential Majority MONUSCO United Nations Stabilization Mission to the Congo (replaced BV Polling station MONUC in 2010) Independent Electoral Commission CEI PALU Unified Lumumbist Party National Independent Electoral CENI PNC Congolese National Police Commission (replaced the CEI in 2010) PPRD Party for Reconciliation and Democracy CEJP Episcopal Commission for Peace and Justice PV Procés-verbal

CLCR Local compilation center RCD Congolese Rally for Democracy

CNCR National compilation center RENOSEC National Election Observation Network in Congo CSAC Superior Audiovisual and Communications Council SADC South African Development Community CSJ Supreme Court SEP Executive provincial secretary CV Voting center SRSG Special representative to the EISA Election Institute for Southern Africa secretary general Europian Union Election EUEOM UDPS Union for Democracy and Observation Mission Social Progress Armed Forces of the Democratic FARDC UNC Union for the Congolese Nation Republic of the Congo UNDP U.N. Development Program HAM High Media Authority

IFES International Foundation for Alliance of National Congolese Believers Election Systems Union of Forces of Change MLC Movement for Congolese Liberation Union for the Awakening and Development MP Presidential Majority (replaced of Congo AMP in 2011) Union for the Reconstruction of Congo MONUC United Nations Mission to the Congo Union of Mobutu Democrats

75 The Carter Center

Appendix C Letters of Invitation

76 The Carter Center 2011 Elections in the Democratic Republic of the Congo

77 The Carter Center

Appendix D The Carter Center Observation Delegation and Staff

His Excellency Rupiah Banda, Former President of Jerry Kovacs, Canada Zambia, Zambia Jean-Paul Lamah, Long-term Observer, Guinea Dr. John Stremlau, Vice President of Peace Jean-Jacques Lauzier, Long-term Observer, Canada Programs, The Carter Center, United States Max Lockie, Long-term Observer, United States Observers Marta Martinelli, Italy Firouzeh Afsharnia, Long-term Observer, Pippa Matthews, Ireland United States/Iran Mallé Mbow, Senegal Euloge Aidasso, Benin Georgia McPeak, United States Koffi Anzoua, Long-term Observer, Côte d’Ivoire Ronald Mininger, United States Ousmane Aouta, Niger Arba Murati, Albania Jean Paul Ombi Bangaya, Central African Republic Said Nassar, Long-term Observer, Comoros Idiatou Barry, Guinea Theodore Ndione, France Raymond Beherou, Central African Republic Alfredo Nicoletti, Long-term Observer, Italy Laura Bennison, Long-term Observer, Ireland Curtis Palmer, Long-term Observer, Canada Stephanie Berry, Long-term Observer, Olivier Pohlier, Long-term Observer, France Switzerland/Germany Allyson Quijano, Long-term Observer, United States Gert Binder, Austria Eric Lee Reynolds, Long-term Observer, Anuradha Chakravarty, India United States/France Oley Cole, Long-term Observer, Gambia Natasha Rothchild, United States Mvemba Dizolele, United States Kate Rougvie, Long-term Observer, Scotland Tiago Faia, Portugal Luca Di Ruggiero, Long-term Observer, Italy Silvia de Felix, Spain Laura Salich, Long-term Observer, Spain Idrissa Hassane, Long-term Observer, Niger Christine Seisun, United States/Switzerland Helene Helbig de Balzac, Belgium Andre Michel Simon, France Marta Iniguez de Heredia, Spain Colin Smith, Ireland Edward Horgan, Ireland Marianne Stone, United States Ahmad Issa, Lebanon/France Genevieve Swedor, Switzerland/Nigeria Adingra Kakou, Côte d’Ivoire Carolein van Ham, The Netherlands Fahiraman Kone, Côte d’Ivoire Judith Vorrath, Germany Jean Bosson Kouadio, Côte d’Ivoire Amboko Wameyo, Long-term Observer, Kenya

78 The Carter Center 2011 Elections in the Democratic Republic of the Congo

Erinn Wattie, Canada Carter Center Staff — Atlanta Annegret Werner, Germany Gina Chirillo, Intern, Human Rights Program, Philippe Woerth, Council of Europe, France United States Khalil Zerargui, France Olivia Owens, Financial Analyst, Peace Programs, United States/Burundi Carter Center Staff — Kinshasa David Pottie, Associate Director, Democracy Program, Canada Anne-Marie Bipendu, Administrative Assistant, DRC Jennifer Russi, Assistant Program Coordinator, Democracy Program, United States Christian Bisimwa Mulume, Media Officer, DRC Intern, Democracy Program, Valerie Harden, LTO Coordinator, United States Anna Taquet, United States/France Baya Kara, Field Office Director, Algeria Augustin Kibassa, Logistics Assistant, DRC Jules Lalancette, Security Manager, Canada Stephane Mondon, Legal Analyst, France Eugene Salamu, Finance Officer, DRC Pedro Teixiera, Field Operations Director, Portugal

79 The Carter Center

Appendix E Observer Checklists

The Carter Center - Elections PrésidentiellesOpening etOpening Législatives 2011 RDC

Opening (continued)

Arrival Time Departure time

Province Constituency Name of the voting center Polling Station No. Number of voters registered in the polling station (PS) Number of ballot paper received in the PS Number of voters on the "liste de dérogation" Number of voters on the omited voters list Number of votes registered at the time of departure ENVIRONMENT YES NO N/A 1 Have you seen electoral propaganda less than 100 meters from the polling station? 2 Have you witnessed cases of intimidation or disturbances of the operations? a) outside of the PS? b) inside of the PS? 3 Is the voters list displayed outside of the PS? 4 Is there electoral propaganda inside the PS? 5 Is the PS code visibly displayed?

PS WORKERS AND OPENING PROCEDURES YES NO N/A

6 Did the polling station open on time? If not, please specify: a) Between 6:30 and 7:30 b) After 7:00 Reason for delay 7 Were the President, two assessors, one secretary, and one supplementary assessor present at your arrival? If no, indicate who was missing: a) President b) Assessor 1 c) Assessor 2 d) Secretary e) Sup. Assessor 8 Is at least one poll worker a woman? 9 Is the President of the PS a woman? 10 Were the political party agents there when you arrived? If yes, which ones? a) PPRD f) Others b) RCD c) UNC d) PALU e) UDPS 11 Was a political party agent forbidden to observe the PS? If yes, which one? 12 Were domestic observers present?

(continues)

80 The Carter Center 2011 Elections in the Democratic Republic of the Congo

Opening (continued) The Carter Center - Elections PrésidentiellesOpening et Législatives(Continued) 2011 RDC

13 Were there essential materials missing? a) Ballots b) Ballot boxes c) Voting booths d) Indellible Ink e) PVs f) Stamp g) List of voters The Carter Center - Elections Présidentielles et Législatives 2011 RDC 14 How many total ballot boxes were in the PS? 15 Does the voting center have extra ballot boxes in case of a shortage? 16 Were the ballots counted before the start of operations? 17 Are there enough ballots for all of the expected voters? 18 Was the ballot box presented as empty to everyone present? 19 Was the ballot box sealed before all present? 20 Did party agents have the opportunity to discuss observations, objections, or complaints on the results record (PV - Procès Verbal)? 21 Did party agents have objections or complaints? 22 Were the complaints or objections recorded on the results record? 23 Was it possible to record a complaint? 24 Did someone talk to you about an objection? If yes, who? a) Voter b) Party agent c) Observer d) Other 25 Were poll workers, political party agents, domestic observers, and journalists allowed to vote before the opening of the polling station? 26 Does the polling station have a means of communication? 27 What was the average distance voters traveled to the PS? 28 Did the PS members receive training? 29 Did the location of the voting booth guarantee a secret ballot?

SECURITY 27 Is the polling center or voting center secured by the police? 28 Is the polling center or voting center secured by the military? 29 Did any of the security services attempt to intimidate or influence the voters?

GENERAL EVALUATION 30 a) Good: The procedures were comprehensively followed. b) Satisfactory: Minor problems occurred that will not affect the result. c) Poor: There were larger problems that could affect the results.

COMMENTS

81 The Carter Center 2011 Elections in the Democratic Republic of the Congo

The Carter Center - Elections Présidentielles et LégislativesVotingVoting 2011 RDC

Arrival time Departure time

Province Constituency Urban Rural Name of the voting center Number of polling stations (PS) Number of voters registered on the voters list Number of ballots received Number of registered voters on the "liste de dérogation" Number of registered voters on the omitted list Number of votes registered at the time of departure

ENVIRONMENT YES NO N/A 1 Was there any campaign propoganda less than 100 meters from the polling station? 2 Have you witnessed any cases of intimidation or disturbance of the voting operations? a) Outside the PS b) Inside the PS 3 Is the voter's list displayed outside the PS? 4 Is there any electoral propoganda inside the PS? 5 Is the PS code visibly displayed?

POLL WORKERS AND VOTING PROCEDURES YES NO N/A

6 Was the polling station opened between 6:00 and 6:30? If not, specify. a) Between 6:30 and 7:00 b) After 7:00 Reason for the delay 7 Were the President, two assessors, one secretary and one supplementary assessor present when you arrived? If not, specify who was missing: a) President b) Assessor 1 c) Assessor 2 d) Secretary e) Supp. Assessor 8 Is at least one poll worker a woman? 9 Is the President of the PS a woman? 10 Were the political party agents present when you arrived? If yes, specify which ones: a) PPRD b) RCD c) UNC f) Other (specify) d) PALU e) UDPS 11 Were any political party agents prevented from observing? If yes which one? 12 Were domestic obsevers present? 13 Was any essential material missing? a) Ballots b) Ballot box c) Voting booth d) Indelible ink e) Results record f) Stamp g) Voter list

(continues) 82 The Carter Center 2011 Elections in the Democratic Republic of the Congo

The Carter Center - Elections PrésidentiellesVoting et Législatives (continued) 2011 RDC

14 HowThe Carter many Center ballot - boxes Elections does Présidentielles the PS have et in Législatives total? 2011 RDC 15 Does the voting center have extra ballot boxes in case of a shortage? 16 Are there enough ballots for the expected number of voters? 17 Does the location of the voting booth guarantee a secret ballot? 18 Is the ballot box correctly sealed? 19 Did you see anyone underage vote? 20 Did party agents and observers have the opportunity to discuss their observations and complaints in the results record? 21 Did party agents or observers make any complaints? 22 Were there any complaints written on the results record? 23 Was there any reason for anyone to write any complaints? 24 Did you receive any complaints on the results record? If yes, specify. a) Voter b) Paty agent c) Observer d) Other

25 Did the PS have telephone communication means? 26 Did the voting center have Internet communication means?

VOTING PROCEDURES

27 Is the PS code visibly posted? 28 Was the identity of voters verified? 29 Was the presence of voters on the voter list verified? 30 Was absence of a mark of ink on the hand of voters verified? 31 Was the ballot signed by the President of the PS? 32 Is the voter correctly informed on the process of voting? 33 Did voters ask for assistence from others? 34 Did one person assist many voters? 35 Did you observe any case where the voter list was not signed? 36 Did you observe any case of family voting? 37 Did you observe any case where voters were not inked after voting? 38 Did you observe any case where a voter was denied the right to vote in the PS? a) The voter's name was not on the list and he or she does not qualify to vote by "dérogation" b) The voter did not have his or her electoral card. c) The voter's finger was already inked with indelible ink? d) Other: Specify.

39 Has any behavior of the poll workers led you to doubt his or her impartiality? 40 Is there any other list that allows the voters to register if his or her name is not on the voter's list? (beside "la liste de dérogation) 41 How many voters voted by "dérogation" in the PS? 42 What was the average distance voters traveled to reach the polling station?

SECURITY

43 Was the polling station or voting center secured by the police? 44 Was the polling station or voting center secured by the military? 45 Did any of the security services attempt to intimidate or influence the voters? 46 Did you observe any tension? (continues) 83 The Carter Center 2011 Elections in the Democratic Republic of the Congo

The Carter Center - Elections PrésidentiellesVoting et Législatives (continued) 2011 RDC GENERAL EVALUATION 47 a) Good : The procedures were comprehensively followed. b) Satisfactory : Minor problems occurred that should not affect the results. c) Poor : Larger problems occurred that could affect the results.

The Carter Center - Elections Présidentielles et Législatives 2011 RDC

COMMENTS

84 The Carter Center 2011 Elections in the Democratic Republic of the Congo

Form Closing3 - CLO andSIN CountingG AND COUNTING Team number Name of observer

Arrival time Departure time

Province District Name of the voting site Polling station number Number of registered voters Number of ballot paper received Number of registered on the derogation list Number of registered on the omitted list Number of voters who signed emargement list when closing the polling station

CLOSING YES NO N/A 1 Did the president announce the closing of the polling station after the official opening time? 2 Were all voters present upon announcement of the closing allowed to vote? 3 Were voters who were absent at the announcement of closing allowed to vote? 4 Was the 'PV des operations' (PV for the voting) completed? 5 Did the president select five voters to observe the counting?

COUNTING YES NO N/A 6 Were unauthorized persons allowed to witness the counting? 7 Did the polling station have the following material before beginning the counting? a) 'PV de depouillement' (PV for the counting) b) Pointing form c) Results form d) Different envelopes e) Pointing form 8 Is there at least one woman among polling station members? 9 Is the polling station president a woman? 10 Are the party agents present during the counting? If yes, which ones? a) PPRD b) RCD c) UNC f) Others (precise) d) PALU e) UDPS 11 Was any party agent not allow to observe the counting? If yes, which one?

12 Were domestic observers present? 13 Were ballot papers counted one by one when taken out of the ballot box? 14 Is the number of the voters registered on the voting operation document equal to the number of ballot papers in the ballot box? 15 Did the polling agent read each ballot paper in a loud, clear voice? 16 Were there any objection concerning rejected ballot papers? 17 Were there concerns on the validation of any ballot papers? 18 Was the pointing form was correctly filled? 19 Was the pointing form mentioned on the PV? 20 21 Did all the party agents received a copy of PV results form? 22 Did the party agent signed the results form? 23 Were result posted in front of the polling station? 24 Did all the valid, rejected, spoiled and unused ballot papers parked in the envelope number 1? 25 Did the CBVD transmitted the 4 envelop to the CCVD? 26 Did the BV has means to communicate by telephone? (continues) 85 The Carter Center 2011 Elections in the Democratic Republic of the Congo

Voting (continued)

27 Did the CV has means to communicate by using internet? COMPLAIN AND RECLAMATIONS 28 Did the complain recorded to the PV? 29 Did the possibility to record the complain on the PV exist? 30 Did they talk to you about the complain? If yes a) Party agents b) Observer c) Others

SECURITY 31 Is the BV/CV secure by the police? 32 Is the BV/CV secure by the army? 33 The behavior of the security services present is susceptible, intimidating or influencing the CVD workers?

GENERAL EVALUATION 34 a) Good: The procedures were globally followed b) Fair: Minor problems Des problèmes mineurs non susceptibles d'affecter le résultat c) Poor: Susceptible problem to affect the results

COMMENT

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Compilation of Results

Team Number Name of Observer

Arrival time Departure time

P rovince Dis trict Name of the voting s ite S tation Number Number of presidential ballots received Number of legislative ballots received Number of presidential ballots processed Number of legislative ballots processed Number of voting centers registered with the tabulation center

CENTRALIZATION YES NO N/A 1 Did the head of registration systematically register envelopes received? 2 Did registration center operators input records into a computer database? 3 Were envelopes destined for CENI, CSJ, and SEP sorted to be sent to the archives? 4 Did the BVD count unopened envelopes? If yes, how many were recognized at the time of your observation? 5 Were the envelopes uniformly forwarded to the collection office?

COLLECTION YES NO N/A

6 Did the head of classification assign received envelopes a number by type of election? 7 Did the official in charge of classification label envelopes by district and type of election? 8 Were the ballots consistently transported to tabulation office?

COUNTING

9 Were there political party agents present when you arrived? If yes, specify which ones: a) PPRD b) RCD c) UNC f) Other (specify) d) PALU e) UDPS YES NO N/A 10 Were envelopes of the presidential election processed first (before legislative envelopes)? 11 Was a sequential number assigned to every form in the envelope with the exception of the envelope papers? 12 Were envelopes containing envelopes marked by sequential numbers? 13 How many sheets of reconstructed results were established upon your arrival? 14 How many polling stations required a recount? 15 How many result forms were processed upon your arrival? 16 Were there witnesses present at the tabulation process? 17 Were witnesses and observers able to verify results or were there concerns after counting? COUNTING AND TABULATION

19 How many forms of RECONSTITUTION of results were received upon registration at the compilation and tabulation offices? (continues)

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Compilation of Results (continued)

20 WereThe Carter results Center forms - Electionsaccessible Présidentielles by computers? et Législatives 2011 RDC YES NO N/A

21 How many cases of abnormalities and concerns were there after tabulation? 22 Were the marks of ink on the hand of voters verified?

ARCHIVAGE YES NO N/A 23 Was the reception of envelopes done in a mannerly order? 24 Did the archive location allow for the physical integrity of the documents? 25 Were the envelopes classified systematically? 26 How often were the different envelopes sent to the following recipients? a) CENI b) SCSJ c) SEP

EQUIPMENT AND COMMUNICATION YES NO N/A 27 Was the CLCR equipped with a personal computer? 28 Was the CLCR equipped with a VSAT? 29 Was the CLCR equipped with a Weymar?

SECURITY

30 Was the CLCR secured by police? 31 Was the CLCR secured by the military? 32 Did any of the security services attempt to intimidate or influence the voters?

GENERAL EVALUATION 33 a) Good : The procedures were comprehensively followed. b) Satisfactory : Minor problems occurred that should not affect the results. c) Poor : Larger problems occurred that could affect the results.

COMMENTS

88 The Carter Center

Appendix F Deployment Map

89 The Carter Center

Appendix G Carter Center Public Statements and Reports

FOR IMMEDIATE RELEASE Aug. 17, 2011 CONTACTS: Atlanta, Deborah Hakes +1 404 420 5124; Kinshasa, Baya Kara +243- 812-407-659

Carter Center Announces Election Observation Mission to DRC

At the invitation of the Independent Electoral Commission (CENI) and the welcome of political parties, The Carter Center has launched an international election observation mission for the Democratic Republic of the Congo (DRC) elections on Nov. 28, 2011.

The early deployment of long-term observers will allow the Center to assess pre-election preparations. The Carter Center also will closely monitor legal and political developments that may impact the election, as well as partner with national organizations to advance domestic election observation skills and training. A field office has been established in Kinshasa to guide these efforts.

“The Carter Center hopes that this election observation mission will reassure the Congolese people that their struggle for democratic and credible elections remains important to the international community. Our assessment will strengthen the efforts of voters, candidates, parties, and election institutions to deliver the best possible elections on Nov. 28,” said Carter Center Election Mission Field Representative Baya Kara.

The Center has deployed 10 long-term observers from nine countries in six provinces across DRC to gain firsthand knowledge of the activities of the election commission, political parties, civil society organizations, and the international community, as well as other domestic and international election observation missions. Their deployment coincides with the beginning of registration for presidential and legislative candidates and adoption of the electoral law annex.

These observers will be joined by a second group of 10 long-term observers in September and an additional 40 members shortly before the elections. The Center will release periodic public statements on electoral findings, available on its website.

90 The Center's observation mission is conducted in accordance with the Declaration of Principles for International Election Observation and Code of Conduct that was adopted at the United Nations in 2005 and has been endorsed by 37 election observation groups. The Center assesses the electoral process based on the DRC's national legal framework The Carter Center 2011 Elections in the Democratic Republic of the Congo

and its obligations for democratic elections contained in regional and international agreements.

Present in DRC since the 2006 presidential and legislative elections, the Center opened the Kinshasa-based Human Rights House in 2007 to support human rights defenders.

####

"Waging Peace. Fighting Disease. Building Hope." A not‐for‐profit, nongovernmental organization, The Carter Center has helped to improve life for people in more than 70 countries by resolving conflicts; advancing democracy, human rights, and economic opportunity; preventing diseases; improving mental health care; and teaching farmers in developing nations to increase crop production. The Carter Center was founded in 1982 by former U.S. President Jimmy Carter and his wife, Rosalynn, in partnership with Emory University, to advance peace and health worldwide.

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First Carter Center Pre-Election Statement on Preparations in the Democratic Republic of Congo

Oct. 17, 2011

The Carter Center has been closely monitoring the implementation of the electoral calendar that was released by the Independent National Election Commission (CENI) in April of 2011. Voter registration that was scheduled to begin February 28 was postponed until June, which meant that the work of reviewing and validating the voter registry of 32,024,640 could not be concluded before the publication of the annex to the electoral law, determining the number of parliament member seats per district. The delayed publication of the provisional voter register threatens to undermine the public’s ability to confirm or challenge their details and lingering opposition party concerns about the quality of the register could be used to call into question the overall credibility of the voter roll. CENI must take rapid and convincing steps to ensure the transparency and credibility of the voter register to meet the state’s obligation to ensure that all eligible voters are afforded the right to do so.

CENI and its partners, notably the United Nations Mission in Congo (MONUSCO) which provides air support for distribution of election materials among other assistance, are under serious time pressure to ensure the timely distribution of all necessary materials for a November 28, 2011 presidential and legislative election. The very high number of legislative candidates 18,386 creates a complex challenge for ballot paper design, printing, distribution and accommodation of the resulting large ballots by the ballot boxes. Moreover, ballot box production and delivery is still underway. These and associated scheduling and logistical tasks pose a serious threat to the election date. If a delay becomes necessary the Center strongly urges CENI to consult with its partners, including presidential candidates and political parties, as soon as possible and announce well-defined contingency plans for a realistic alternative calendar for a new election date.

Additional resources are needed to implement civic and voter education in advance of election day. The CENI, perhaps in collaboration with United Nations Development Program (UNDP), should compile a table of activities being conducted around the country by various organizations in order to quickly identify and target education gaps and underserved areas, as was done in 2006 by the previous election commission.

Although the official campaign starts on October 28, political parties and presidential candidates are already active in many parts of the country. Several serious incidents of intimidation and violence have occurred and not all parties have signed the Code of Conduct. Competition is an integral part of an election but CENI, presidential candidates and party members must renew

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their good faith efforts at communication and respect for the laws and procedures of the elections. The DRC is a large and fractured country with a violent past and continued armed conflict in the East; failure to recognize this context, or worse, to exploit it for electoral gain, will undermine the possibility of genuine democratic elections.

As all electoral disputes related to presidential and legislative elections are adjudicated by the Supreme Court, there is an urgent need to increase human resource capacity and the Court’s expertise in electoral law.

The Carter Center International Observation Mission

Following an invitation from the President of the CENI, The Carter Center conducted an assessment mission in April 2011 to meet with Congolese stakeholders concerning the electoral environment and preparations underway for the upcoming elections. On July 16, 2011, the CENI invited the The Carter Center to observe the 2011 presidential and legislative elections. With strong encouragement from political parties, civil society groups, and representatives of the international community, The Carter Center established an office in Kinshasa to coordinate international election observation activities on August 17, 2011. In August, the Center deployed ten long-term observers covering seven provinces, Kinshasa, Bas-Congo, Oriental Province, North Kivu, South Kivu, Katanga, and Kasai Oriental. In September, the Center deployed an additional ten long-term observers for remaining provinces in the DRC. Current Carter Center observers represent fifteen nationalities. In November, they will be joined by an additional forty medium- and short-term observers who will monitor events in the days before the election and observe the entire vote tabulation process.

The Carter Center and its observers appreciate the good will of stakeholders at the local and national levels with whom we have met, including CENI, political parties, presidential and legislative candidates, civil society groups, domestic observers, voters, and media organizations in gathering observations of the electoral process. The Carter Center is also partnering with Congolese national organizations to advance domestic observation efforts through its Human Rights House. The Center's observation mission is conducted in accordance with the Declaration of Principles for International Election Observation and Code of Conduct that was adopted at the United Nations in 2005 and has been endorsed by 37 election observation groups.1 The Center assesses the electoral process based on the DRC's national legal framework and its obligations for democratic elections contained in regional and international agreements.

The Carter Center’s international election observation mission to the Democratic Republic of the Congo is pleased to release its first pre-election statement on the 2011 presidential and legislative elections. Subsequent public reports will provide continued in-depth assessment of aspects of the elections based on direct observation and consultation with a wide array of political actors across the country.

1 Declaration of Principles and Code of Conduct for International Election Observation (2005)

93 The Carter Center 2011 Elections in the Democratic Republic of the Congo

Historical Background

The Carter Center observed both rounds of the 2006 elections (visit www.cartercenter.org to view public reports). These elections were part of an extraordinary process of transition, which brought together warring parties and forged a consensus on the need for peace and democracy. For any first elections such as these, the Center is well aware that the development of democratic processes and institutions is a long-term project, which will require strong ongoing support from the international community. The following summary points provide important context for the 2011 elections.

Voting took place on July 30, 2006 in a generally peaceful and orderly manner with a voter turnout of 70% of some 25 million registered voters. Overall, polling stations were well organized and polling center staff competently fulfilled their duties.

The campaign period was marked by abuse of governmental authority. There were a number of important procedural flaws that weakened the transparency of the process. The Center recommended that these be addressed prior to the second round in order to avoid more serious problems and to ensure acceptance of the results. The tabulation of provisional results for the July 30 presidential election was generally successful, due to the diligence of electoral staff in spite of difficult working conditions. However, serious flaws in the collection and chain of custody of electoral materials, especially in Kinshasa but also in other locations around the country, undermined transparency and threatened the credibility of the process. The publication of results by polling station was a crucial measure in strengthening public confidence. The premises of one of the five democratic bodies of the interim constitution, the Media High Authority, were destroyed by Jean-Pierre Bemba supporters leaving a July political rally in Kinshasa. The Carter Center did not find evidence of widespread or systematic manipulation and concluded that the presidential results announced August 20 were credible; legislative results, on the whole, were also credible, but could not be validated in detail (69 of 275 registered parties won seats). Only 42 women were elected. Of 33 presidential candidates, President Joseph Kabila finished in first place with 44% followed by Vice President Jean-Pierre Bemba with 20%, requiring a run-off election. The explosive deadly violence following the announcement of the results in Kinshasa between armed troops loyal to Kabila and Bemba’s militia revealed the incompleteness of the peace process and the enduring threats to democracy in the DRC. On Oct. 29, 2006 the majority of Congolese voters participated in an election that in most parts of the country was extremely orderly and peaceful. The administration of these elections was well executed, bearing testimony to the accumulated experience of the many thousands of election workers over three democratic exercises (voter registration, constitutional referendum and 2 rounds of elections) held in less than a year. Despite confidence building measures between the two candidates after the August violence, presidential campaigning for the second round was minimal and there were a number of instances where hate language was used and violence occurred. 94

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· Electoral administration procedures were revised appropriately by the Independent Electoral Commission (CEI) after the first round, and while the new measures were not always fully implemented, voting and counting operations were significantly improved. · In many areas where a particular candidate was popular, witnesses from the other candidate were not present until the end of the count. This limited the effectiveness of such witnesses and may have led to inaccurate predictions of the results by each candidate. · The media, including the public broadcaster RTNC, did not honor their responsibilities to provide neutral information to the public. · Instances of disruption or attempted manipulation of the electoral process, while serious in a few cases, did not undermine the overall success of the vote. Despite suspicious patterns of massive vote counts for each candidate in their respective strongholds, the overall results validated the victory of Joseph Kabila with 58.5% of the vote. · In protest of the results, on November 21, Jean-Pierre Bemba supporters attacked and set fire to the Supreme Court building.

The many important shortcomings observed by the Center made the electoral process vulnerable to allegations of manipulation and leaves many questions that cannot be answered. However, The Carter Center did not see evidence of systematic or widespread attempts to manipulate the results. The results of the presidential election are sufficiently clear-cut that the overall outcome could not realistically be affected by any of the shortcomings we have cited. While the Center also has general confidence that the published legislative results faithfully reflect the will of Congolese voters, observed procedural weaknesses made it impossible to confirm specific results, especially in constituencies with close races.

Following the 2006 elections, the government of President Joseph Kabila has closed important elements of political space. Constitutionally mandated decentralization of power to the provinces has not even begun, and local elections have not been scheduled despite government promises. Although many militias have ceased fighting and been nominally integrated in the Armed Forces of DRC, army crackdowns in the east have yet to curb ongoing violence, which are in part fueled by conflict minerals. Human rights defenders remain under threat nationwide. The most prominent example of this is the death of human rights icon Floribert Chebeya at the hands of the police.

Given these difficulties, the successful conduct of the November 28, 2011 elections is all the more important to limit the potential for political violence and to promote genuine democratic elections.2

2 In addition to the United Nations Universal Declaration of Human Rights and other international sources, DRC is obliged under its commitments to many African sources to ensure the conduct of genuine democratic elections, including AU, African Charter on Democracy, Elections and Governance, Art. 3(4) “State Parties shall implement this Charter in accordance with the following principles: 4. holding of regular, transparent, free and fair elections.” AU, African Union Declaration on the Principles Governing Democratic Elections in Africa, Art. 2 “Regular elections constitute a key element of the democratization process and therefore, are essential ingredients for good governance, the rule of law, the maintenance and promotion of peace, security, stability and development.“

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Legal Structure

An important amendment to Article 71 of the Congolese Constitution of 2005 was passed on January 25, 2011, by the Senate and National Assembly, modifying the electoral system for presidential and legislative elections. Most significantly, the presidential election was changed from a two-round voting system to a plurality voting system. In 2006 President Kabila was elected by an absolute majority, which necessitated a run-off election in October between the two candidates who received the highest number of votes, Kabila (44%) and Bemba (20%).

Several articles of the electoral law of February 2006 were amended on July 1, 2011, concerning technical and organizational aspects for elections. On August 17, 2011, an annex to the electoral law was passed allocating seats per voting district.3 The allocation was based on figures from the June-July voter registration period before the voter register had been examined and cross- checked in order to remove duplicate names, active-duty military and police, and other ineligible voters.

Under Article 74 of the electoral law, the Supreme Court is the designated body for adjudication of electoral disputes arising from the presidential and legislative elections, and it has the difficult task of reviewing all electoral issues arising from the candidacy of the eleven presidential candidates and 18,386 legislative candidates.4 There is an urgent need to increase the capacity of Congolese justices to ensure a swift review and remedy for electoral disputes by implementing training in electoral law as was done in 2006.5 There are only two justices out of the nine current justices that remain on the Court who benefited from the 2006 training. There is also a crucial need to increase the number of support staff. The Court has only 7 days to rule on complaints for presidential candidates (and 2 months for legislative candidates). A member of the Congolese Conseil Superior de la Magistrature, an advisory group of leading judges, recommends 30 magistrates be seconded to Supreme Court during election period. Such measures are essential to ensure that every political party and candidate has the right to seek legal remedy for violations of electoral law that may arise during this period.6

3 Loi portant succession et repartition des circonscriptions electorales 11/014 (Aug. 17, 2011) 4 Article 74 of the Electoral Law designates the Constitutional Court, which is not yet operational. 5 Everyone has the right to a timely and effective remedy by a duly constituted national body. AU, African Commission on Peoples' and Human Rights, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, is persuasive upon DRC: c (a) “(a) Everyone has the right to an effective remedy by competent national tribunals for acts violating the rights granted by the constitution, by law or by the Charter, notwithstanding that the acts were committed by persons in an official capacity.” See also DRC signature of AU, African Union Declaration on the Principles Governing Democratic Elections in Africa, para. iii “establish impartial, all-inclusive, competent and accountable national electoral bodies staffed by qualified personnel, as well as competent legal entities including effective constitutional courts to arbitrate in the event of disputes arising from the conduct of elections.” 6 Article 73 of the Electoral Law

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Election Administration

The CENI is the electoral body responsible for managing the Congolese presidential and legislative elections in 2011.7 The mandate of the CENI is to organize and manage the pre- electoral process, the electoral process through identification and enrollment of voters, publication of the voter register, and transmission of provisional results. CENI builds on the experience of the 2005 voter registration and constitutional referendum and 2006 presidential, legislative, and provincial elections under the management of the Independent Election Commission (CEI), its predecessor. The CENI is comprised of members of the majority party (4) and opposition groups (3). In January 2011, these seven members selected Pastor Daniel Ngoy Mulunda as president. In May of 2011, CENI began work on preparations for the 2011 elections. The electoral calendar released by the CENI on April 29, 2011, for the 2011-2013 electoral cycle was revised most recently on August 18, 2011, after adoption of the first annex to the electoral law.

In September the Audiovisual and Communication High Council (CSAC) replaced the High Media Authority (HAM) as the new media regulatory body. During the electoral period, CSAC is concerned with equal access to public media for all political parties and candidates. In the past two months Carter Center LTOs received reports from opposition party representatives in several provinces, notably Kinshasa, Kasai Occidental, Katanga, North Kivu, Oriental province, and Equateur, that these groups lack access to public TV and radio.

CSAC members were selected during the month of August and began work in September 2011. The organizational challenges faced by CSAC just two months before elections are significant. Its current office is on the 10th floor of state-owned TV station RTNC, closely tied to the majority party, which does not permit the level of independence envisioned under Article 2 of its governing statute.8 The CSAC released a directive on campaign conduct for parties and candidates two days after establishing its office.9 Political parties and other stakeholders have not commented on the content of the directive. There are questions concerning how CSAC will be able enforce its directive to ensure campaign-related content on TV and radio does not include discriminatory or hateful rhetoric; it expects to establish a presence in each provincial capital to monitor the media during the electoral period.

The United Nations peacekeeping mission MONUC, the predecessor of MONUSCO, was responsible for coordinating the largest electoral support effort in history by providing technical and logistical assistance. The support of the international community is present in the 2011 elections, notably through the provision of some $167 million towards the 2011-13 electoral cycle, however the Congolese people are taking the lead and bear the majority of costs associated with the election. MONUSCO has the role of supporting these elections, particularly in terms of logistics and deployment of election materials to primary and secondary hubs throughout the provinces.

7 Law creating CENI 8 Organic Law 10/001 (Jan.10, 2011) 9 Directive du Conseil Superieur de l’audiovisuel et de la communication No. CSAC/AP/0002/2011 (Sept. 28, 2011)

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Election Administration Observations

Voter Registration: In June and July of 2011, the CENI enrolled 32,024,640 voters across DRC. Though its observers were not present at voter registration centers in May and June of 2011, The Carter Center has followed the voter registration process closely. Compared to 2006, the voter registration period was longer in duration and in certain provinces the number of registration sites increased, both contributing to comprehensive registration of eligible voters. The voter registration list for 169 districts has not been published in full. Under Article 6 of the electoral law the list is to be published by September 28 at the latest, 30 days before the start of the electoral campaign period.

The CENI began publishing voter lists on its website on October 3. As of October 10, lists for districts in Bas-Congo, Kasai Occidental, Maniema are available. While it is the discretion of the CENI to choose how it publishes the September 28 voter list, CENI President Mulunda stated on September 27 that voter lists would be made available to the public at CENI offices across the country.10 Not one Carter Center observer team has found voter lists available yet for consultation at the CENI’s provincial election commission offices. The CENI should follow through with President Mulunda’s offer, as the CENI website - though a potentially useful tool for disseminating news and as a depository for information - is not always operational and many voters are unable to access and download documents from the internet.

The registration process was characterized by a low number of domestic observers from civil society and political party observers to monitor the process. Political party Union for Democracy and Social Progress (UDPS) has requested to do an audit of the server which holds voter registration information on the grounds that minors, foreigners, military, and other ineligible groups are enrolled. The CENI has said it cannot permit access to the server by opposition groups unless the majority party is present. PPRD refuses to participate in an audit on the grounds it does not consider UDPS concerns about voter list fraud or error to be genuine or credible, noting that UDPS was not present during the voter registration to provide to a basis for its claims. These positions create an impasse concerning party access to the server, contributing to tensions between the parties that have at times escalated to violence.

The Center is concerned that unresolved issues related to the voter register, notably a) the need to reassure political parties that adequate measures have been undertaken to “clean” the roll of multiple or error entries and b) the timely publication for public examination and challenge, could undermine the overall credibility of the voter register.11

10 Under Article 6 of the Electoral Law, the CENI may “determine the method of publication.” Article 8 of the Electoral Law requires the CENI to post the corresponding voter list at every polling station 30 days before the election, or October 28. Mulunda’s statement was made at the Technical Committee Meeting, convened by the CENI. 11 DRC is obliged by its commitments through the International Covenant on Civil and Political Rights, Article 25 (b): “Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in Article 2 and without unreasonable restrictions: (b)” To vote and be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the voter.”

98 The Carter Center 2011 Elections in the Democratic Republic of the Congo

Electoral Calendar: The Carter Center has also observed departures from the CENI electoral calendar. Such delays are especially challenging in the context of the DRC. While there has been substantial investment in construction of roads and other infrastructure improvement since 2006, the current calendar for distribution of electoral materials presents a significant challenge for the CENI and MONUSCO.

In mid-September the CENI and MONUSCO began distributing initial shipments of electoral kits for the 62,000 polling stations throughout DRC (located at 16,000 voting centers in 13,000 locations compared to 50,000 polling stations total in 2006). The majority of CENI hubs and subhubs have received non-sensitive electoral material, including voting booths and training materials for polling workers. The distribution of ballot boxes is significantly delayed due to production challenges.

With six weeks to election day the time remaining is extremely compressed for CENI and its partners to ensure the design and printing of ballot papers, production and receipt of ballot boxes and other essential election materials and the timely distribution of all these election materials, as well as the finalization and publication of all procedures for polling, counting and tabulation, matched to the recruitment and training of polling station officials, and other related tasks. CENI should therefore, develop as soon as possible, contingency plans for a delay in the election date.12 Should a delay be required, CENI should consult with presidential candidates, political parties and international partners to ensure that the reasons are clearly defined and a detailed plan and budget is presented to achieve a realistic date.

The majority of CENI teams have concluded their work in each province to identify polling locations and recruit election officials. Their recommendations have been submitted to CENI headquarters; locations of polling stations are still to be made public.

Registration of presidential candidates was finalized on September 26, with the publication of the final list - one day ahead of a revised calendar and 10 days behind the original date. Registration of legislative candidates was extended; a provisional list of legislative candidates was published on September 21; and a final list was published on its website on October 17. The majority of legislative candidates registered late in the process by submitting applications on September 10- 11. Candidates appear to have delayed their submissions while negotiating party affiliations and the CENI was unprepared to process the large volume of candidates at once, despite this occurrence during legislative candidate registration in 2006. Carter Center observers monitoring the candidate application process in Kinshasa and Mbuji Mayi reported complete disorder at CENI candidate application processing centers (BRTCs). Across the country the CENI extended the registration processing period by 48 hours, through September 13, in order to ensure candidates in the queue were able to register. Carter Center observers in Kisangani observed that though the extended-registration process was not strictly managed, allowing some candidates to

12 Temporary postponement of voting processes is permissible under international law, owing for example to public emergency, but only to the extent required by the circumstances and provided that the measures are not contrary to the State’s other obligations under international law. The political effects of national considerations, notably the expiration of President Joseph Kabila’s constitutional mandate on Dec. 6, 2011, must obviously also be taken into account along with managerial, financial, and operational considerations.

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register out of order, the CENI staff were competent and professional, and working with very limited resources.

The large number of applications generated processing errors across candidate registration centers. A legal challenge against the CENI was submitted to the Supreme Court after at least one political party submitted candidate lists that exceeded the number of seats in some districts. The CENI is responsible for ensuring candidate registration conforms to electoral law, which limits the number of party candidates per district to the number of seats.13 There is no indication that CENI intentionally allowed departures from this requirement and instead it likely concerns limitations in resources of CENI to oversee over 18,000 candidate applications. As recently as September 23 the CENI anticipated a total 15,500 legislative candidate applications.14

This legal challenge against the CENI underscores a perception of many opposition parties who question the neutrality and independence of the CENI. The CENI met with parties on September 7 in Kinshasa to share information and address party concerns. The CENI cancelled a second planned meeting with parties scheduled for September 28, which has been not rescheduled to this date. This type of outreach, through the “Forum des partis politiques,” is needed on a regular basis to increase transparency in the work of CENI and improve relations with parties.

Voter Education: It is a role of independent election commissions to undertake voter education activities.15 Article 5 (7) of CENI’s governing document says CENI is responsible for coordinating a civic education campaign by putting into place sensitization activities for voters. The CENI to this point has not implemented activities because of budget constraints. Congolese civil society groups are eager to contribute to voter education but have limited means to implement activities. Femmes solidaires pour la paix et le développement (FSPD), a network of 58 local organizations, lead voter education events in advance of the 2006 election with support from international organizations and the UN. These events targeted women, especially rural or illiterate women with limited access to information, in Kinshasa, the Kivus, and Bandundu. According to FSPD’s National President there is no project funding from donors for similar activities this year.

UNDP is producing civic education materials that will be distributed across the DRC and there are two important initiatives by international organizations IFES and EISA, however voter education remains an activity that has not benefited from substantial international support. The international community should direct funding to Congolese NGOs to ensure Congolese citizens understand the importance of the elections and their role in the process.

13 Article 22 of Law No. 03/11 (June 25, 2011) 14 CENI press conference, Sept. 23, 2011 15 International Covenant on Civil and Political Rights, Article 19 (2) (b): “Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.” United Nations, U.N. Human Rights Committee, General Comment 25 on “The Right to Participate in Public Affairs, Voting Rights and the Right to Equal Access to Public Service,” para. 11: “States must take effective measures to ensure that all persons entitled to vote are able to exercise that right. (..)Voter education (..) campaigns are necessary to ensure the effective exercise of Article 25 rights by an informed community.”

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Transparency: Since September 2 the CENI has held weekly press conferences at its headquarters in Kinshasa to share information and address questions. The CENI provincial office in Matadi may institute a weekly press conference as well, which would increase timely access to information for Congolese citizens and parties in the area. The CENI website is a potentially valuable instrument but it remains woefully out of date and incomplete. Although the majority of Congolese do not have internet access, CENI should nevertheless make the fullest possible use of this resource to make information available, manage informational demands made upon the commission.

Major Political Parties and Candidates

There are approximately 147 political parties in the DRC. Major political parties include: the Party for Reconciliation and Development (PPRD), led by President Joseph Kabila. The Congo Liberation Movement (MLC); Unified Lumumbist Party (PALU); Union of Mobutu Democrats (UDEMO); Union of Forces for Change (UFC); Union for Democracy and Social Progress (UDPS); and Union for the Congolese Nation (UNC).

Eleven presidential candidates are confirmed, including Etienne Tshisekedi with the UDPS - with considerable support in the Kasais - who initially boycotted the elections in 2006. Three presidential candidates from 2006 are candidates again in 2011, current president Joseph Kabila (running as an independent candidate), Francois Mobutu, and Oscar Kashala. Leon Kengo Wa Dondo is a candidate from UFC, and current president of the Senate. Vital Kamerhe served as a legislative member representing South Kivu with PPRD. In 2008 he was forced to resign as president of the National Assembly after questioning the presence of Rwandan troops without prior parliamentary approval. He later founded the UNC. Other candidates include Jean Djamba, Adam Bombole, Francois Nicephore Kakese, Antipas Nyamwisi, and Josue Kamama (the latter two are independent candidates). Opposition parties have not reached agreement on a single presidential candidate though this has been a priority for opposition parties and there have been several negotiations to this end.

There are 18,386 candidates contesting the 500-seat National Assembly. This number has doubled since 2006, from 9,709 legislative candidates. This rise in numbers can, in part, be attributed to the creation of ‘satellite’ parties, which are affiliated with larger parties. Under a proportional representation system satellite parties, in effect, increase the number of party members that may run in a particular district. Carter Center observers in Katanga province learned that political party Peuple Pour la Paix et le Développement (PPPD) is a satellite party of the PPRD, and the similarity in party acronyms likely contributed an excess number of PPRD legislative candidates registered to a district in Kisangani.

The infusion of additional candidates by the creation of new parties in this manner presented challenges to the candidate registration process. For example, in Kanaga there are 1,142 candidates for 42 seats, posing difficulties not only for ballot paper design and accommodating the ballot papers in the ballot box but also for voters to be able to distinguish among and select their preferred candidates. Ideally the ballot paper design should include not only the candidate name but also their photograph, party affiliation if any, and party logo, especially to assist illiterate voters. CENI will have to take ballot paper size into account for its training of polling

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officials so they can explain the ballot paper to voters, ensure that administrative procedures and even size of secure envelopes are proportional to the size and complexity of the ballots.

However the large number of candidates creates a dynamic and opportunity for more individuals to be engaged in the political process and involved in efforts to respond to the needs of Congolese voters and put forward creative solutions to address problems. The election law allows for parties or candidates to have witness per polling station (with one substitute), enabling an important aspect of international best practice.16 However, the very high number of candidates could pose logistical challenges for polling station officials to manage the number of people inside a crowded polling station. CENI should ensure adequate information is shared with parties and that election officials receive training on how to meet the double challenge of ensuring that voter rights are respected while handling the right of candidates to have observers present.

Campaign Environment and Assembly

Under Article 110 of the electoral law the candidate and party campaign period begins on October 28. However visible signs of campaigning such as banners and posters were observed in various provinces throughout DRC. It is not clear to electoral actors which institution (Supreme Court, other courts, CENI, CSAC) has responsibility for monitoring and enforcing infractions relating to early-campaigning. The police, under the instruction of the Ministry of Interior in Oriental Province, have recently removed campaign banners in Kisangani.

The CENI prepared a 2011 Code of Conduct, which has been signed by media organizations and all major political parties with the exception of UDPS. The party’s justification for not signing is given on the grounds of the need for more transparency in the work of the CENI and the release of party members in jail.

Over the past few weeks there have been reports by opposition parties of limitations on the freedom to assemble by local authorities. Carter Center observers in Kinshasa and Bas-Congo were told by opposition party members in these areas that they were prevented from holding rallies in public stadiums, and that other parties have been able to organize similar events at the same locations. For the past four weeks UDPS members have been blocked by police before reaching the CENI headquarters in Gombe. At times police have used tear gas and fired shots in the air to disperse UDPS protesters. Congolese authorities have an obligation to apply laws consistently and respect obligations guaranteeing the right of parties to assemble in public places. Political parties also have the responsibility to notify authorities in the manner required under the law before holding public events.

Civil Society and Domestic Observers

Congolese civil society plays a crucial role in monitoring and supporting the electoral process. Carter Center observers have been told by civil society groups in their areas that these

16 Inter-Parliamentary Union Declaration on Criteria for Free and Fair Elections, Art. 7: “States should take all necessary and appropriate measures to ensure the transparency of the entire electoral process including, for example, through the presence of party agents and duly accredited observers.”

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organizations lack resources to deploy observers.17 Congolese groups are receiving less financial support from international donors to undertake activities during this election period compared to 2006. Given the key role played by neutral and capable domestic groups in deterring fraud and bolstering confidence in results, there is an urgent need for international community to provide financial support to ensure the presence of Congolese civil society groups.

The Carter Center is supporting a network of domestic observers. The Center will train 300 long- term observers and 6,000 short-term observers to be deployed in all provinces. The Catholic Church will deploy 30,000 observers. As in the 2006 elections, the Réseau national de l’observation et la surveillance d’élections au Congo (RENOSEC), Cadre permanent des concentrations de la femme congolaise (CAFCO), Réseau d’observation des Confessions Religieuses (ROC), Conseils nationaux de jeunesse (CNJ) are planning to observe the elections.

Women’s Participation

Approximately half of registered Congolese voters are women. Congolese political parties however are characterized by low numbers female candidates and other party leadership roles. The only female presidential candidate’s application was removed before confirmation of the final list of candidates. In 2006, four of 33 presidential candidates were women. Proportional representation systems are considered to benefit the inclusion of women into the legislative branch, however not more than 12% of legislative candidates in this election are women. There is no formal mechanism in place to improve the involvement and participation of women in politics, though consideration of gender is incorporated into various laws and institutional guidelines.

Media

The context for journalists in the DRC is one of self-censorship for reasons of personal safety and job security, especially for those working in public media. The late establishment of the media regulatory agency, the CSAC, is significant because its predecessor, the HAM, was not operational. Equal media access for candidates is called for under the electoral law and is a service to Congolese voters.18 Carter Center observers were told by opposition party representatives in Kananga that they lack the resources to pay for their messages to be carried on

17 International Covenant on Civil and Political Rights, Article 25 (a): “Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in Article 2 and without unreasonable restrictions: (a) To take part in the conduct of public affairs, directly or through freely chosen representatives.” U.N. Human Rights Committee, General Comment 25 on “The Right to Participate in Public Affairs, Voting Rights and the Right to Equal Access to Public Service,” para. 8: “Citizens also take part in the conduct of public affairs by exerting influence through public debate and dialogue with their representatives or through their capacity to organize themselves. This participation is supported by ensuring freedom of expression, assembly and association.” 18 In addition to fundamental U.N. provisions for freedom of speech, everyone has the right of equal access to any service or resource intended for use by the public: U.N. International Convention on the Elimination of All Forms of Racial Discrimination, Art. 5(f): “In compliance with the fundamental obligations laid out in Article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone…the right of access to any place or service intended for use by the general public." Further, AU, Declaration on Principles on Freedom of Expression in Africa, Art. 6: “The public service ambit of public broadcasters should be clearly defined and include an obligation to ensure that the public receive adequate, politically balanced information, particularly during election periods.”

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private stations, and that provisions for equal access to state media do not exist in practice. TCC observers Kananga were also told by civil society groups that 3 or 4 of the 10 radio stations in the area are considered politically biased in their program content.

Security Situation

The security situation in the west of the country remains calm, with fears the situation may escalate following the rise of political tensions and the persistence of land disputes. In eastern DRC, MONUSCO and Congolese national armed forces (FARDC) are engaged in military operations against armed groups that contribute to securing the region for the electoral period. Insecurity in the east has not compromised electoral preparations though this is a risk in the period leading up to the election concerning deployment of materials and ability for voters to move freely on election day. Election day security is guaranteed by the Congolese national police. The current security plan in place calls for two officers for each of the 62,000 polling stations. Questions remain whether there are sufficient numbers of officers to fulfill this role as well as funds to deploy officers to remote parts of the country.

Disputes between PPRD and UDPS in Kinshasa have resulted in violence and damage to party resources. On September 5 and 6, UDPS and PPRD exchanged reciprocal attacks in the Limite district of Kinshasa after Tshisekedi submitted his presidental candidate application to the CENI. PPRD party supporters set fire to the headquarters of UDPS , while UDPS party supporters attacked PPRD headquarters and vehicles. Station RLTV (a private station considered to favor the opposition in its programming) was set on fire during these events. These attacks reinforce the important role the CENI must play in diffusing tensions between parties. Reports in the media of youth mobilization, possibly armed, suggest that political parties are not competing in good faith in the electoral process and raise specter of increased election violence. To this end CENI should ensure there are formal dispute mechanisms available for parties to peacefully resolve disputes against each other to minimize threat to resort to violence.

Recommendations

The Carter Center encourages the Congolese people to take advantage of this opportunity to freely choose representatives in a secure and peaceful environment.

The Carter Center calls on the Congolese government: • To direct necessary resources to the National Congolese Police guarantee the security of the electoral process, particularly during the deployment of sensitive electoral material, on election day throughout the 62,000 polling stations, and during the tabulation process; • To provide the CENI with adequate financial means to accomplish its activities, especially under a tight electoral calendar; • To improve the capacity of the Supreme Court; and • To allocate funding to the CSAC for it to establish a separate office, independent of the RTNC.

The Carter Center strongly encourages the Independent National Electoral Commission: • To maintain a permanent communication mechanism with parties as partners in the electoral process by re-instituting the Party Political Forum to meet on a regular basis;

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• To increase access and transparency concerning the National Transmission Center (CNT); • To select suitable polling stations which allow members to conduct their work with sufficient space for voters, party witnesses, domestic and international observers; • To finalize and publish all procedures for the polling stations and compilation centers to relevant actors, including CENI workers, political party witnesses, and observers; • To dramatically increase voter education efforts, especially in rural parts of the country and other areas of most need; • To recruit more women, as stipulated in Article 10 of the CENI’s governing statute, especially to serve as polling station presidents; • To facilitate accreditation of international and domestic observers and party witnesses; and • To develop contingency plans should they become necessary in the event that an election date delay becomes necessary. Should a delay be required, CENI should consult with presidential candidates, political parties and international partners to ensure that the reasons are clearly defined and a detailed plan and budget is presented to achieve a realistic date.

The Carter Center reminds legislative candidates of their responsibility to develop a clear political platform that can be differentiated from other candidates, especially in the context of the large number of National Assembly candidates.

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"Waging Peace. Fighting Disease. Building Hope." A not-for-profit, nongovernmental organization, The Carter Center has helped to improve life for people in more than 70 countries by resolving conflicts; advancing democracy, human rights, and economic opportunity; preventing diseases; improving mental health care; and teaching farmers in developing nations to increase crop production. The Carter Center was founded in 1982 by former U.S. President Jimmy Carter and his wife, Rosalynn, in partnership with Emory University, to advance peace and health worldwide.

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FOR IMMEDIATE RELEASE Nov. 22, 2011 CONTACT: In Atlanta, Deborah Hakes 1 404 420 5124; In Kinshasa, Baya Kara +243 812 407 659

Former Zambia President Rupiah Banda to Lead Carter Center Delegation to DRC’s Election

The Carter Center announced today that former Zambia President Rupiah Banda and Carter Center Vice President for Peace Programs Dr. John Stremlau will co-lead the Center’s 70-person delegation representing 27 nations to observe the Democratic Republic of the Congo’s Nov. 28 elections.

“The Carter Center encourages the Independent National Election Commission to continue its efforts in the timely deployment of sensitive election materials prior to the opening of polls,” said President Banda. “It is CENI’s responsibility to ensure that the operation of the polls respects regional and international commitments. The challenges encountered in the distribution of election materials thus far also underscore the importance of establishing clear procedures for collecting and collating polling station results.”

President Banda and Dr. Stremlau will meet with key stakeholders including the Independent National Election Commission (CENI), political parties, independent candidates, civil society organizations, and the international community, and will observe polling, counting, and tabulation on election day.

Given that some election results may be disputed, the Center is concerned about the lack of transparency in the Supreme Court’s handling of complaints arising from the candidate nominations. The publication of these decisions immediately after the complaints period would enhance the confidence of the public and political actors in their judicial system.

The Carter Center further encourages political parties, movements, and independent candidates to demonstrate their commitment to the ideals of democracy and appeal to their supporters to respect the rule of law and the code of conduct signed by 10 of the 11 presidential candidates.

The Carter Center's long-term observers have been deployed since August and are now joined by short-term observers to be briefed in Kinshasa and deployed ahead of election

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day. The Center is observing the DRC’s election at the invitation of the CENI and the welcome of political parties.

The Center's observation mission is conducted in accordance with the Declaration of Principles for International Election Observation and Code of Conduct that was adopted at the United Nations in 2005 and has been endorsed by 37 election observation groups. The Center assesses the electoral process based on the DRC’s national legal framework and its obligations for democratic elections contained in regional and international agreements.

The Center’s previous statements on the DRC election process may be found at www.cartercenter.org. The Center will release its preliminary findings on the DRC election shortly after the process concludes.

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"Waging Peace. Fighting Disease. Building Hope."

A not-for-profit, nongovernmental organization, The Carter Center has helped to improve life for people in more than 70 countries by resolving conflicts; advancing democracy, human rights, and economic opportunity; preventing diseases; improving mental health care; and teaching farmers in developing nations to increase crop production. The Carter Center was founded in 1982 by former U.S. President Jimmy Carter and his wife, Rosalynn, in partnership with Emory University, to advance peace and health worldwide. Please visit www.cartercenter.org to learn more about The Carter Center.

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The Carter Center International Election Observation Mission Democratic Republic of Congo, Presidential and Legislative Elections, Nov. 28, 2011

Preliminary Post Election Statement

FOR IMMEDIATE RELEASE Nov. 30, 2011 Contact: Baya Kara in Kinshasa +243 81 240 7659 or Deborah Hakes in Atlanta +1 404 420 5124

Executive Summary

The Carter Center welcomes the conduct of presidential and legislative elections in the Democratic Republic of Congo (DRC) on Nov. 28; voters participated in large numbers with few major incidents that disrupted the peaceful conduct of the polls. The results tabulation process is underway.

The large and peaceful turnout that the Congolese people have demonstrated reflects their continuing commitment to the pursuit of peace.

All candidates and voters should respect that will and allow the ballots to be counted without intimidation.

On election day, Carter Center observers visited nearly 300 polling stations across the 10 provinces and Kinshasa. The following preliminary remarks reflect some of the Center’s initial observations and will be supplemented by additional reports as the results process is completed.

Key Points · The Independent National Election Commission’s (CENI) administration of the election was wrought with logistical and budgetary challenges. · On multiple important election preparations, CENI operations deviated from the electoral calendar. The original candidate nomination period was extended; identification of polling stations was completed late; the voter lists were not posted at all polling stations as required by law by Oct. 28; and essential election materials, notably ballot papers, were delivered at the last minute. · The international community, including the United Nations, the European Union, the United States, South Africa, Angola, and others, has provided crucial financial and material support to the government of the DRC.

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· The official campaign period was largely peaceful and competitive, though marred by deaths and arrests when police responded to demonstrations. · It is noteworthy that half of the registered voters in Congo are women, though they were not among the presidential candidates and composed only 10 percent of legislative candidates. · The Center also commends CENI for being established as an independent administrative organ that oversaw an election with more than 32 million registered voters, 11 presidential candidates, and more than 18,000 legislative candidates. On election day, a majority of polling stations observed had the necessary materials and CENI is to be congratulated for the final push to ensure that the polls could open on Nov. 28. However, essential materials, most importantly ballot papers and voter lists were absent in a significant number of cases. · The appropriate polling station workers were present in most places visited. Observers reported a range of irregularities in voting procedures, notably failures to check voters hands for ink or to apply it properly after voting, which is an important safeguard against multiple voting. · Many voters struggled to find their names on posted lists at voting centers and would have benefited from more CENI assistance. · Some poll workers were unsure of procedures for handling voters with voter cards but who were not on the voter list despite a last minute CENI decision to allow such individuals to vote. · Candidate witnesses and domestic observers were well-represented in nearly all polling stations visited. · With the results compilation process underway, official voter turnout is unknown but it was evident to observers that large numbers of Congolese voters were determined to exercise their fundamental political rights and participate in democratic elections. Despite the many obstacles facing the conduct of these elections, the voters have exhibited an extraordinary commitment to peace and democracy. · CENI’s civic and voter education efforts were inadequate to prepare voters to thoroughly understand the overall process, relying instead of international and domestic non- governmental organizations. · The government established a media monitoring body, the Superior Council of Audiovisual Communications (CSAC), but only one month before the start of the campaign, leaving it with too little time to become a fully effective institution. Despite some significant decisions, CSAC’s late establishment may have compromised its legal duty to verify that all candidates had equitable media access. · Constitutional amendments in January 2011 changed the election system from a two- round voting system to a plurality-based system and reforms were introduced to the electoral law in August. A code of conduct to govern candidate activity during the elections was developed but unfortunately one of the presidential candidates failed to sign. · The Carter Center observed the closing and counting process and will remain deployed for the compilation of results. Advance preparation of the compilation centers, including such basic needs as lighting, furniture, and computers, has been inadequate and CENI must intensify its efforts to ensure that the voice of the Congolese people is respected, recorded, and communicated in a manner that is secure and transparent. 2

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· The publication of election results by polling station as required by the electoral law will be the single best means to ensure that the elections reflect the will of the people. · Electoral dispute resolution mechanisms in both CENI and the court system lack wide accessibility to citizens and are perceived by many Congolese to be partial. Nevertheless Congolese should make use of all avenues of appeal in the event that they have complaints about any aspect of the electoral process. · Candidates and voters alike should remain calm and await CENI’s announcement of official preliminary results due by Dec. 6.

Background: The Carter Center election observation mission has been in the DRC since Aug. 17, 2011, following an invitation from CENI. The mission was led by former President of Zambia Rupiah Bwezani Banda and Vice President of Carter Center Peace Programs Dr. John Stremlau and is composed of 70 observers from 27 countries.

The Center thanks CENI and all those Congolese who have welcomed Carter Center observers and given their time to meet with them.

The Center’s observation mission in the DRC is conducted in accordance with international standards for elections, and the observation mission was conducted in accordance with the Declaration of Principles for International Election Observation and the Code of Conduct for International Observers that was adopted at the United Nations in 2005 and has been endorsed by 37 observation groups.

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"Waging Peace. Fighting Disease. Building Hope."

A not-for-profit, nongovernmental organization, The Carter Center has helped to improve life for people in more than 70 countries by resolving conflicts; advancing democracy, human rights, and economic opportunity; preventing diseases; improving mental health care; and teaching farmers in developing nations to increase crop production. The Carter Center was founded in 1982 by former U.S. President Jimmy Carter and his wife, Rosalynn, in partnership with Emory University, to advance peace and health worldwide.

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The Carter Center International Election Observation Mission Democratic Republic of Congo, Presidential and Legislative Elections, Nov. 28, 2011

Statement of Preliminary Findings

LEGAL FRAMEWORK

A sound legal framework is essential to effective administration of genuine democratic elections. The legal framework includes the rules found in the domestic laws of the country that regulate how all aspects of the electoral process will unfold. The legal framework should be consistent with the state’s human rights obligations.

The DRC has ratified a number of international and regional treaties through which it has obliged itself to follow certain key human rights standards1: International Covenant on Civil and Political Rights,2 International Convention on the Elimination of all Forms of Racial Discrimination,3 International Convention on Economic, Social and Cultural Rights,4 Convention on the Elimination of all Forms of Discrimination against Women,5 Convention on the Political Rights of Women,6 Convention on the Rights of the Child,7 Vienna Convention on the Law of Treaties,8 African Charter on Human and Peoples’ Rights,9 Protocol to the African Charter on Human and Peoples Rights on the Rights of Women in Africa,10 African Convention on Preventing and Combating Corruption,11 African Charter on Democracy, Election and Governance,12 and the Southern African Development Community Protocol Against Corruption.13

1 Article 215 of the Congolese Constitution importantly notes that international treaties and covenants that the DRC signs or ratifies are superior to any national laws, barring any formal reservations the DRC may have expressed. 2 Acceded Nov. 1, 1976 (ICCPR) 3 Acceded April 21, 1976 (ICERD) 4 Acceded Nov. 1, 1976 (ICESCR) 5 Ratified July 17, 1980 (CEDAW) 6 Acceded Oct. 12, 1977 (CPRW) 7 Ratified Sept. 27, 1990 8 Acceded, July 24, 1977 9 Signed Sept. 9, 1999 (ACHPR) 10 Signed Dec. 5, 2003 11 Signed Dec. 5, 2003 12 Signed June 29, 2008 (ACDEG) 13 Signed Aug. 14, 2001 (SADC Protocol) 4 111 The Carter Center 2011 Elections in the Democratic Republic of the Congo

The Center assesses election activities in the DRC against its national legal framework and its obligations for democratic elections contained in regional and international agreements to determine the extent to which the DRC met its obligations. International standards establish criteria for evaluating the quality of elections. Standards allow the use of objective criteria to analyze strengths and weaknesses of an electoral process and offer an impartial analysis. Committing to these standards is the result of a voluntary process of a sovereign state that has chosen to give its citizens guarantees that electoral competition will be organized according to rules which will guarantee the objectivity of the legitimacy of their representatives.

The constitution, electoral law, and legislation concerning allocation of parliamentary seats are the core elements of a state’s electoral framework.

An important constitutional modification to Article 71 changing the presidential election from a two-round voting system to a plurality voting system was passed on Jan. 25, 2011, by the Senate and National Assembly. Though the amendment was supported by the opposition in parliament, the change is considered to favor President Kabila, who received the largest proportion of votes in the presidential election of 2006. The law modifying the distribution of seats in the representative assemblies was promulgated on Aug. 17, 2011. Political parties in districts that lost seats questioned the integrity of the population figures, which were taken from a contested voter registry.

As in the 2006 elections, the Supreme Court of Justice is the only competent jurisdiction to settle electoral disputes. Under the 2005 constitution, the Supreme Court was to be dissolved and replaced by three distinct courts: the Cassation Court,14 a State Council, and a Constitutional Court. Pending the establishment of these institutions, the Supreme Court assumes responsibility for civil, administrative, and electoral litigation, along with interpretation of the constitution.

On Oct. 13, 2011, seventeen new justices were appointed to the Supreme Court in anticipation of post-electoral litigation. The appointment of justices so close to election day can raise the impression of bias which can undermine the trust of voters and political parties in the independence of the court responsible for the resolution of electoral disputes. The union of magistrates contested the legality of the appointments of additional justices under the current law.

These new nominations were made after the review of cases in October related to candidate applications - legal challenges were submitted to the Supreme Court after at least one political party submitted candidate lists that exceeded the number of seats in some districts during the candidate registration process. The three judges sitting at the time of the disputes settled 84 decisions (56 were deemed inadmissible and ten were rejected on procedural grounds). Of the eighteen complaints considered on the merits, fourteen were upheld. The Carter Center continues to be concerned the Supreme Court has not released judgments from these 84 cases.15

14 A court of last resort with limited scope of review to determine a miscarriage of justice or certify a question of law based soley on points of law. 15 On Nov. 22, The Carter Center issued a public statement calling for the publication of complaints arising from legislative candidate nominations to enhance confidence of the public and political actors in their judicial system. 5 112 The Carter Center 2011 Elections in the Democratic Republic of the Congo

International standards of transparency require that judicial decisions are made public; the Congolese Supreme Court should make its decisions available for examination without delay.

ELECTION ADMINISTRATION

An independent and impartial authority that functions transparently and professionally is internationally recognized as an effective means of ensuring that citizens are able to participate in a genuine democratic process, and that other international obligations related to the democratic process can be met.16

CENI is the administrative organ in charge of overseeing presidential and legislative elections in the DRC. It was established in May 2010 by law though the constitution called for its creation to replace the CEI by 2008. CENI is an independent national organization mandated to: organize and manage electoral processes, manage voter registration processes, publish for public viewing a voter registry and disseminate the provisional election outcome.17 CENI is comprised of members of the majority party (4) and opposition groups (3).18 In Jan. 2011, these seven members, including Pastor Daniel Ngoy Mulunda as president, were selected. The electoral calendar released by CENI on April 29, 2011, for the 2011-2013 electoral cycle was revised most recently on Aug. 18, 2011, after adoption of annexes to the electoral law. 19

CENI is comprised of ten provincial offices and Kinshasa and 169 districts (antennes). On Oct. 23, CENI announced new leadership for provincial CENI offices, which involved transfer of provincial CENI representatives (SEP) between provinces and creation of deputy positions. Staff movements were also made at the CENI antennes. LTOs observed that switching of SEP officers created disorganization and disrupted election preparations, by having to get a new leadership team up to speed. LTOs were told transfer of CENI staff was done at the demand of political parties amid accusations of partisanship.

The support of the international community was significant in the 2011 elections, notably through the provision of some $167 million towards the 2011-13 electoral cycle, however the DRC government is responsible for the majority of costs associated with the elections, with a reported total of some $900 million. The United Nations peacekeeping mission in the DRC (MONUSCO) had the role of supporting these elections, particularly in terms of logistics and deployment of election materials to primary and secondary hubs throughout the provinces, and selected territories.

CENI has taken some important measures to improve transparency in its work and to inform candidates, political parties, and the voting public on issues concerning the election. CENI has held periodic and weekly press conferences, and in late October CENI enhanced accessibility of information on its website by including full voter and legislative candidate lists by district. Concerted outreach to political parties through its Political Party Forums was modest however,

16 UNHRC , General Comment 25 para. 20 17 Loi no. 11/003 modifiant la Loi no. 06/006 (June 25, 2011), Art. 2 18 Art. 10, CENI Organic Law, July 2010 19 Calendrier des Election Génerales et Provinciales 2011-2013 en RDC. “General and Provincial Election Calendar.” (June 15, 2011) 6 113 The Carter Center 2011 Elections in the Democratic Republic of the Congo despite a tense and fluid political environment, and in comparison to CEI outreach to political parties in 2006. CENI only convened two political party forums, though other meetings with parties were held under the coordination of CENI and its partners in the international community. Regular party forums might have improved relations between CENI and opposition parties.

Electoral Calendar & Delivery of Election Materials

CENI is charged with promulgating a calendar for key aspects of the electoral process though it has failed to comply with a number of important deadlines imposed by the electoral law. The publication of the list of voters by province and district 30 days before the campaign20, the display of voters lists 30 days before election day at each polling station,21 the publication of the list and location of polling stations 30 days before election day,22 the delivery of ballots 48 hours before the vote,23 the convocation of the electorate 90 days before the expiration of the term of the current president,24 were all done outside of the provisions of the electoral law.

As previously noted by The Carter Center, these departures from the electoral calendar also presented significant logistical challenges for CENI and MONUSCO as it compressed the time for acquisition and delivery of election materials throughout the DRC. These delays left CENI to confront a very strict time frame in which to ensure timely design and printing of ballot papers, production and receipt of ballot boxes and other key electoral materials.

The production and printing of electoral materials is one of the most crucial aspects of the electoral process leading up to its deployment to polling sites. Election kits that were ordered and shipped from China and Lebanon – which should have initially arrived by boat – ultimately arrived by airplane. This increased CENI’s projected delivery budget by $7 million.

The production of ballot boxes also created a major challenge for CENI due to complications in coordinating production with the first supplier it selected in South Africa. CENI had to eventually change suppliers, choosing a German supplier instead. Problems, however, arose again for CENI since the German supplier could not guarantee delivery of ballot boxes in time for the Nov. 28 elections. CENI was thus forced to change suppliers, this time using a Chinese supplier who was able to ensure delivery of the 186,000 ballot boxes. To accomplish this though, the Chinese supplier required the use of 16 air flights, at a cost to CENI of $14 million. To ensure that electoral kits were delivered as quickly as possible, the Congolese government financed CENI’s budget increase through use of funds in its national transportation budget.

MONUSCO also provided important logistical support to CENI by delivering via airplane non essential election materials to Congolese voting sites. For its part, CENI was tasked with deploying materials that could be delivered using trucks. Though CENI had this plan in place, it

20 Electoral Law of March 9, 2006, Art. 6 21 Electoral Law of March 9, 2006, Art. 8 22 Electoral Law of March 9, 2006, Art. 47 23 Electoral Law of March 9, 2006, Art. 56 24 Electoral Law of March 9, 2006, Art. 102 7 114 The Carter Center 2011 Elections in the Democratic Republic of the Congo failed to produce a clear logistical plan for delivery of materials throughout the territories. This fact, in addition to its failure to analyze the logistical realities and complications of such delivery, reflected a lack of transparency on the part of CENI.

In regard to ballot production, once CENI certified the final presidential and legislative candidate lists, it contracted with 17 South Afrian printers to print all the ballot papers. A sample voting ballot for the presidential race was quickly created. However, for the legislative race, 11 sample ballots were created. The legislative ballots created ranged in length from a one page ballot developed for the Yumbi district (with five seats and five candidates) to a 57-page ballot created for Tshangu in Kinshasa (with 1,500 candidates contesting 25 seats).

The printed ballots were large in size. This created yet another challenge for CENI that it had to address, since the size made the tasks of transporting, storing and delivering them to the voting stations very difficult. CENI thus called onto neighboring countries to aid in the transport of materials via helicopter: 5 helicopters were provided by Angola, 2 from the DRC armed forces, 4 from South Africa (in addition to 2 airplanes) and 6 helicopters were contracted from commercial operators.

Spurred by speculation leading up to election day that it would be logistically impossible for elections to take place across all of the DRC on Nov. 28, CENI held a press conference on Nov. 26 at which Pastor Ngoy Mulunda assured the public that all election materials would be delivered by midnight of Nov. 27, six hours before the opening of polls.

Nevetheless, on Nov. 26 and 27, Carter Center observers reported that there still remained polling sites that were missing both essential and non-essential material. In certain regions especially, where the infrastructure was very difficult for vehicles to traverse, polling materials were not received in advance of Nov. 28.

In reviewing the production and delivery of voting materials, it is clear that this represented a very large challenge for CENI. It seems then that many stakeholders in the DRC electoral process were legitimately concerned about CENI’s ability to meet its deadline to deliver electoral materials across the entirety of the DRC in time for the Nov. 28 elections.

Selection and Training of Poll Workers

Article 49 of the electoral law establishes the basic provision for composition of polling station personnel in each polling station. The Article notes that workers are selected from the list of registered voters at that particular station. Each polling station is staffed with a president, two intake officers, a secretary, and an additional intake officer. Article 51 notes that poll workers must declare an oath promising to uphold the electoral laws and protect the secrecy of the vote throughout the voting process.25 The law also requires that each poll worker be able to read and write and receive training in poll working procedures.26

25 Art. 51 also notes the CENI must provide the official version of the oath in each of the national languages. 26 Electoral Code, Art. 50 8 115 The Carter Center 2011 Elections in the Democratic Republic of the Congo

CENI organized its training of electoral workers via the cascade method of replication trainings: starting with eighteen Master Trainers; 196 National Electoral Trainers (FEN); 2,598 Provincial Electoral Trainers (FEP); 34,972 Heads of the voting centers; and ending with 349,225 members of the polling and counting stations (BVD) and 4,160 members of the local center for compilation of results (CLCR). The cascade approach is nimble and efficient but if not monitored closely (i.e. supervision of selected replication trainings by Master Trainers to ensure quality of instruction) and investments are not made in development and production two sets of manuals (for participants and one with instructor notes), the quality of this type of training can be compromised.

The planned nation-wide six-day training by the CENI agents of FEN trainers was delayed four days until Oct. 31, due to the late arrival of lead trainers from Kinshasa. Carter Center observers noted variations in format, quality, and organization of trainings of CENI agents they attended. LTOs in Matadi observing a FEP training there noted a lack of necessary training material present and not all participants received booklets listing election day procedures. Across the DRC the training was reduced to four or five days.

The planned five-day training for members of the BVDs and CLCRs took place in most provinces Nov. 24-26. The trainings attended by LTOs in Kisangani were only of half-day duration due to the limited availiblity of meeting space. The majority of Center observers noted that training of polling station workers appeared to unfold smoothly without great complication. In a few trainings observers noted that there was a shortage of training materials.

On Nov. 25, three days before the elections, CENI announced in a press release that citizens with a voter card whose name does not appear on the voter list would be allowed to vote in the nearest voting site of the same constituency. Though the measure announced by the CENI affirms and furthers the right to vote - it contradicts Article 6 of the electoral law which prescribes that, ‘the quality of being a voter is recognized by being recorded in the voters lists and holding a voter registration card issued by the Independent National Electoral Commission.’ It may also weaken safeguards in place to prevent multiple voting or that ineligible voters (active duty military, police) who managed to obtain a voter ID card may not vote. Carter Center observers noted that many poll workers were unaware of the late decision to implement this procedure so application of the list of omitted voters was inconsistent – resulting in some voters who were able to vote and others in the same situation who were prevented.

Establishment of Polling Stations

CENI staff from Kinshasa went to each province to select locations of polling stations. With 6 million additional voters this election had 63,865 polling stations, compared to 58,000 in 2006. A cartography for each province dated Oct. 31 listing voting centers was released by the CENI between Nov. 7-8, allowing parties to finally organize deployment of agents (which submit applications for a particular BVD). It appears that identification of these BVDs27 was derived from 2006 research and was out of date. Use of outdated information resulted in errors in the cartography which the CENI did not correct quickly, giving rise to opposition questions of the validity of polling stations and claims of false or “ghost” polling stations.

27 There were 11,611 voting sites and 16,548 voting centers. 9 116 } The Carter Center 2011 Elections in the Democratic Republic of the Congo

Candidate Registration

As noted in a previous Carter Center report, the candidate registration process in early September was disorganized due to the volume of last minute applicants.28 Applications submitted to the office responsible for processing candidate applications (BRTC) were reviewed for eligibility by a legal clerk. In some cases, there was a lack of verification of eligibility or monitoring of resignation of non-elected public officials. In meetings with observers in South Kivu, Congo Liberation Movement (MLC) members alleged that People’s Party for Reconstruction and Development (PPRD) legislative candidates holding local office were successfully registered despite not showing proof resignation or request for temporary leave (which would interrupt salary and access to public resources). It is alleged the current mayor of Bukavu was confirmed as a legislative candidate despite not submitting either letter. Under Article 10 (5) and (6) of the electoral law, candidates who do not submit such a letter are ineligible to register. There were also concerns that CENI did not monitor resignation of individuals who submitted a resignation letter with the application.

VOTER REGISTRATION

Voter registration is recognized as important means to ensure the right to vote, and should be made available to the broadest pool of citizens possible to ensure universal and equal suffrage are protected as required by DRC’s international commitments.29 Voter registration includes all aspects of the electoral process related to the registration of voters.

In June and July of 2011, CENI enrolled 32,024,640 voters across DRC. Few domestic observers from civil society or witnesses from political parties observed the voter registration. Subsequently, opposition parties, in particular the Union for Democracy and Social Progress (UDPS), requested CENI allow them to conduct an audit of the voter registration server after allegations of minors, foreigners, members of the military and other ineligible groups were able to register.30 Despite elaboration of terms of reference for an audit, CENI and UDPS were ultimately unable to agree on the number of party witnesses permitted to be present in order for the audit to go forward.

CENI does not have a legal obligation to allow parties to conduct an audit of the voter register database. However accommodating (reasonable) requests concerning access to the server by political parties could have improved openness in the work of CENI, and may have more instilled voter and political party confidence in the electoral process, thereby minimizing the

28 According to CENI, 14,000 of the over 18,000 applicants applied in the last day or two before the Sept. 11 deadline. 29 United Nations Human Rights Committee, General Comment 25 on “The Right to Participate in Public Affairs, Voting Rights and the Right to Equal Access to Public Service,” para. 11; U.N., International Covenant on Civil and Political Rights, Art. 25(b) 30 Center observers noted that in Maniema that they had heard allegations from an Italian NGO that minors had been seen with voter registration cards. In Bas-Congo, the Directi on Générale de Migration (DGM) in Matadi confirmed isolated cases of Angolans who were able to register and receive voter cards. Allegations were also made but not authenticated that Ugandan nationals had registered in Beni and that Rwandan nationals had registered to vote, with members of the Democratic Liberation Forces of Rwanda (FDLR) registering to vote in Goma and other regions. 10

117 The Carter Center 2011 Elections in the Democratic Republic of the Congo likelihood of allegations of fraud or actual instances of fraud that might occur during the election.

Article 6 of the electoral law requires CENI to publish the voter list within 30 days of the election campaign period start, or Sept. 28.31 As noted in a prior Center report, CENI began publishing voter lists on its website Oct. 3. Under Article 8, CENI is required to post the voter list outside each BVD 30 days before the election. Since Oct. 28, Carter Center observers have conducted periodic visits to polling stations to verify voter list postings. The majority of polling stations visited by observers throughout the DRC in the period between Oct. 28 and Nov. 26 did not have voters lists. In some cases CENI officials justified the delay to protect lists from being torn down or tampered with by persons in the area. Though this may indeed be a valid concern, CENI has an obligation under both its national32 and international commitments to post the list for voters to view in advance of election day. In doing so, citizens’ right to vote is protected as they have the opportunity to discover if their name is missing from the registered voter list. Additionally, citizens who view the list can notify CENI officials of names on the list for persons who are known to be ineligible to vote or who are known to be deceased. Other delays in postings were caused by delays in delivery of voter lists sent from Kinshasa (local offices were unable to print lists posted on the CENI website). This delay or non-posting of voter lists contributed to confusion on election day for voters who did not know in advance the precise location of their polling station and that their name appears on the voter list. Observers reported that less than half of the 375 polling stations visited on Nov. 26 did not have voter lists posted.

Time frames for publications and displays are designed to strengthen the confidence of voters and political parties who can appreciate the quality of the registration process and know the composition of their potential electorate. Delays in the release of voters lists, as well as the location of voting sites decreases the positive effects of these transparency measures.

VOTER EDUCATION

Voter education efforts are necessary to ensure an informed electorate is able to effectively exercise their right to vote.33 These efforts include voter education and voter information provided by the state, political parties or civil society to ensure public awareness of the process, rather than broader civic education efforts.

Article 9(7) of the CENI’s mandate require it engage in civic education campaigns to sensitize voters to the electoral process, in both French and other national languages. This responsibility is in line with the DRC’s major international commitments.34

Official education efforts began in September and Carter Center observers reported CENI shortcomings in direct coordination or indirect support of education initiatives. CENI used radio and community TV to disseminate relevant electoral information (calendar dates). CENI

31 CENI may “determine the method of publication” of the voters’ list. Under the same law, the electoral list must be published at every polling station 30 days prior to the election. 32 Electoral Code, Art. 8. “In each polling station, the electoral list must be posted 30 days prior to voting day.” 33 ICCPR, Art. 25; United Nations Human Rights Committee, General Comment 25, para. 11 34 ICCPR, Art. 19(2)(b) 11 118 The Carter Center 2011 Elections in the Democratic Republic of the Congo primarily noted that it lacked sufficient funds to institute robust voter education campaigns and activities throughout the DRC.35

CENI instead emphasized its expectation that Congolese civil society groups would largely undertake education initiatives to prepare voters for the upcoming election. Some observers reported a general sentiment from local CENI officials that CENI was not responsible for implementing voter education activities.

International actors supported voter and civic education. For example, Search for Common Ground produced television and radio announcements to educate voters. IFES provided small grants to NGOs across the DRC through its Voter Opinion and Involvement Through Civic Education (VOICE) project. The United Nation Development Programme produced civic education materials that were distributed via its Electoral Cycle Support Program (PACE).

For distribution of voter education supplies in CENI offices to local NGOs, observers noted CENI did not appear to have a system in place to screen NGO recipients in advance of distribution of a limited amount of sensitization materials. This lack of screening was problematic because many civil society groups lacked the necessary funds to implement educational initiatives. It is not clear that CENI materials reached those groups who could have capably led such activities.

The Center notes overall that CENI has largely failed to meet its international, regional and national obligations to institute proper voter education efforts throughout the DRC well in advance of election day. Efforts that have been made have been made primarily by international organizations that may not have targeted citizen populations adequately enough. Additional voter education efforts have been made by partisan organizations, thus emphasizing the need for CENI to institute and apply stronger voter education efforts.

CANDIDATES,PARTIES AND THE CAMPAIGN ENVIRONMENT

Equitable treatment of candidates and parties during an election as well as the maintenance of an open and transparent campaign environment are important to protecting the integrity of the democratic election process.36 This wide-ranging constituent part includes campaign finance, the registration of candidates and political parties, and other aspects of the electoral process associated with campaigns and/or candidates and political parties.

Chapter IV of the DRC electoral law governs the conduct of campaign activities during elections. The Carter Center welcomes the establishment of a code of conduct as recommended in the African Charter on Democracy, Elections and Governance and the establishment of a mediation committee with the aim of “helping to the peaceful resolution of conflicts and incidents between electoral parties.”37

35 CENI budget for voter education is approximately $2 million. 36 African Charter on Human and People’s Rights, Arts. 2 and 13(1); U.N. ICCPR, Art. 25(b); International Convention on the Elimination of All Forms of Racial Discrimination, Art. 5(c) 37 “Code de Bonne Conduite” of political parties, political groups, and candidates for the presidential and legislative elections in DRC, Art. 29 12 119 The Carter Center 2011 Elections in the Democratic Republic of the Congo

The early campaign period was characterized by a low level of political campaigning of both legislative and presidential candidates. Two of the 11 presidential candidates (Etienne Tshisekedi and Oscar Kashala) were outside of the DRC for half of the campaign period. Observers reported in some places campaigning was not visible until the last few days of the campaign. Legislative candidates have given several explanations to observers, including: they were waiting on party materials in order to begin campaigning; logistical constraints delayed deployment of campaign materials to the interior of the country; they had limited funds to campaign and saved their resources for the last week of the campaign period; and/or they did not wish to spend their own funds on their election campaign. Observers observed more activity in provincial capitals and principle cities than in remote areas. In the remote parts of provinces, some parties appeared to receive little or no support from their national office.

Observers reported that the campaign events that took place seemed to be scheduled with little organization or advance notice - major political parties were not able to provide an itinerary of scheduled events for the campaign period. When campaign itineraries were given, it was common for the events to not go forward. Observers reported that of all of the parties and candidates, PPRD/Majority Party (MP) and incumbent President Joseph Kabila were the most visible on billboards, banners, and motorized caravans. Similarly MP-affiliated candidates reportedly had good access to TV and radio stations – consistent with this, MP candidates had greater presence in media programming and campaign ads.

Opposition groups, UDPS in particular, allege that local authorities interfered with rallies and other campaign events. With few exceptions (Kinshasa, Mbuji Mayi) Carter Center observers did not report first-hand observations of authorities violating assembly rights of parties.

There was no visible response by UDPS supporters to their presidential candidate, Etienne Tshisekedi’s call to action of Nov. 6, 2011, to secure the release of 34 party members in jail (his speech was seen by many as an incitement to violence).

PARTICIPATION OF WOMEN

Women enjoy the same fundamental right as men to participate in the public affairs of their state, including voting in elections and participating in other aspects of the electoral process.38 International law recognizes that women should be able to vote in elections on equal terms with men, without discrimination.39 Furthermore, states are encouraged to take special, temporary measures to achieve de facto equality for women,40 including the use of quotas to equalize women’s participation in the political affairs of their country.41

38 African Charter on Human and Peoples’ Rights, Art. 13(1); Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, Art. 9(1); ICCPR, Art. 25(b) 39 Convention on the Political Rights of Women, Art. 1 40 African Charter on Democracy, Elections and Governance, Art. 29(3); ECOWAS, Protocol, Art. 40; CEDAW Arts. 3, 4, and 7 41 EISA, SADC, p. 10; CEDAW Committee, General Recommendation No. 5, paras. 15, 28, and 33 13

120 The Carter Center 2011 Elections in the Democratic Republic of the Congo

Both the DRC constitution and the electoral law make include language that upholds the DRC’s international obligations. The preamble of the constitution notes that the Congolese people reaffirm their commitment to uphold a number of its international commitments, including the United Nations Convention the Rights of Children and Women, “particularly in regard to equal representation between men and women in positions of responsibility within governmental institutions.”42 Article 14 pledges the promotion of equality between men and women within the civil, political, economical, social and cultural realms to take measures to combat all public and private forms of violence against women. The electoral law promotes women’s rights as well noting in a number of articles that political parties, poll station leaders, and national and provincial bodies should make note of the gender make up of their members.43

Approximately half of registered Congolese votes are women and during the 2006 presidential elections, more women reportedly voted than men. In spite of these registration statistics, a low number of female candidates ran for any political office during this election. The Carter Center regrets that no party has nominated a woman to stand for the presidential election (in 2006 there were four female candidates). It is also regrettable that the percentage of women candidates in the legislative elections decreased from 12 percent in 2006 to 10 percent in 2011. With this low rate, and the lack of binding measures to promote the role of women in politics, the DRC has not met the SADC declaration target of 30 percent representation of women in parliament.

International and regional commitments of the DRC encourage the government and political leaders to implement procedures that promote more participation of women in politics.44 The Carter Center encourages government and legislative leaders to put in place more formal mechanisms that encourage such gender parity. This would require educating the public and seeking solutions to obstacles that block many women for running for public office. Many female-focused domestic NGOs institute some efforts but more systematically implemented efforts are needed. Though CENI did engage in some gender sensitization efforts during the registration period, more strategically tailored gender education efforts – to men and women alike – may also help to dispel beliefs shared with some observers that women are not suited for public office.

THE MEDIA

The media play an indispensible role during democratic elections by educating voters and political parties about major issues, thus giving them access to information so they can make an informed decision.45 This constituent part includes not only issues related to the rights of journalists, but also to the overall media environment, media coverage, and the ability of political contestants to equitably access the media. Both public and private media are considered, with the understanding that the rights and responsibilities of each will differ.

42 DRC Constitution, Preamble. The Preamble also notes a commitment to uphold the Universal Declaration of Human Rights and the African Charter on Human and People’s Rights. 43 Electoral Code, Arts. 13, 50, 230, and 234. Note, however, that Article 13 notes that the failure of a political party to have equal representation of men and women on their membership list will not be cause for invalidation of the list. 44 CEDAW, Art. 3,4,7; African Charter on Democracy, Elections, and Governance Art. 29(3) 45ICCPR, Art. 19(2); United Nations Convention Against Corruption, Arts. 10(a) and 13(b) 14 121 The Carter Center 2011 Elections in the Democratic Republic of the Congo

Article 33 of the electoral law gives competence to the Superior Council of Audiovisual Communications (CSAC) to oversee activities of the media in regard to the electoral environment.46 CSAC was formally established Oct. 11, 2011, just one month prior to the start of the electoral campaign. It is charged with ensuring in part that the DRC meets its international obligation to provide equal airtime to candidates within the realm of public media. The same article vests CSAC with authority to enlist the aid of appropriate authorities as needed to enforce this principle of equality. CSAC is tasked with providing public notice of what the conditions of media access will be during the electoral campaign period. Based on Article 35, CSAC may deny media airtime to candidates if they feel the media presented would be injurious, defamatory, or in grave violation of the Congolese constitution or other laws. If CSAC takes such action, the candidates denied media access have four days to lodge an appeal with the State Council.

Since the start of the electoral campaign, CSAC has sanctioned 30 acts of media violations against various print journalists and television stations. The most notable sanction CSAC administered was against Lisanga Radio and Television (RLTV). CSAC blocked its signal for seven days for conducting a telephone interview with presidential candidate Etienne Tshisekedi that both criticized the ruling party and incited acts of violence. Though CSAC administered these sanctions, it has also been accused by many as being pro-PPRD and not enforcing its regulations in an impartial manner. This is exemplified somewhat by CSAC’s failure to sanction the PPRD for posting presidential campaign posters in public buildings, one of which was most notably located at the Congolese National Radio and Television (RTNC) building which serves as CSAC headquarters.

Observers who spoke with political parties in Kivu also expressed concern about unequal access to the media and limits on freedom of expression. For instance during the initials days of the electoral campaign, Center observers reported that some print journalists were arrested for writing critically about the ruling party, PPRD. There have been numerous other reports as well of radio stations or television signals being shut down when it aired persons speaking against the ruling party.47 This may contribute to a culture of self censure by journalists for reasons related to job security and safety.

Throughout the campaign, observers noted that the wealthier PPRD and the MP-affiliated parties appeared to have the best means to media access, as the parties have been more visible in television and radio mediums. Opposition and independent party candidates complained about limited access to public media and that access to the private media is not a viable option as it costs too much for them to purchase air time. Many private media stations are also owned by politicians with ties to the ruling PPRD party. Observers also reported that several radio stations permitted incumbent President Kabila to campaign in advance of Oct. 28. By contrast, Radio Okapi, the MONUSCO-run radio station has worked to train journalists on objectivity and professionalism in reporting campaign news.

46 CSAC replaced the Haute Authorité des Médias (HAM), on Aug. 19 as the official media regulatory body. 47 In Mbuji Mayi, observers learned from MONUSCO that one station was shut down for two weeks after opposition party members insulted the governor of Kasai Oriental and the PPRD, the political party he supports. 15 122 } The Carter Center 2011 Elections in the Democratic Republic of the Congo

The Center encourages CSAC, as the media regulatory body to better uphold its obligation to ensure equal access to political candidates during electoral periods. CSAC should also exercise the powers of Article 35 in its regulatory law to deny or remove media access to certain candidates whose messages harm the integrity of the electoral process. CENI should monitor persons who are appointed to serve on CSAC to ensure they have no major political affiliations or commitments that would deter them from being impartial in carrying out duties. Though the realities of a difficult infrastructure in the DRC may render it difficult to ensure radio and television access is available across the country, CENI may consider strategizing methods to ensuring more Congolese citizens are aware of key events and campaigns related to the elections so they can make the most informed decision when they vote.

ELECTION DAY

The opening of polls was generally reported by Carter Center observers as calm and well ordered, however, more than 50 percent of the polling stations observed opened after 7:00 a.m.

Most of the essential material reached the polling stations before the opening. In nine percent of the cases, polling stations opened with some missing ballot papers. It was reported later on that in 53 percent of the cases, ballot papers were not in sufficient quantity to accommodate all the voters.

No electoral propaganda was reported near polling stations and voters lists were displayed outside in 80 percent of the cases. All polling station staff were reported present at the time of opening and political party witnesses were represented in 96 percent of polling stations visited. PPRD and UDPS were the most represented with 60 and 80 percent of the polling stations covered. Other parties observed an average of 30 percent of the poling stations visited. In 88 percent of the cases, domestic observers were present at the time of opening. In some polling centers, the large presence of witnesses led to disturbances and several cases of violence. In general, the confusion prevailing in many of the BVDs generated tensions that polling station staff were unable to control. Security personnel was reportedly present in 96 percent of cases, however, the number of personnel affected to polling centers appeared to be insufficient.

With the modifications of electoral cartography and the absence of efficient communication of poling stations locations, it was reported that a significant number of people reported difficulty finding their polling stations. No system was in place on election day to assist disoriented voters and polling station staff proved unable to do so. Although a special procedure was put in place by CENI on Nov. 25 to allow voters to vote in their voting site if their name was not on the voters list, the information was not applied evenly by polling station presidents.

Apart from the management of these "omitted voters", procedures were generally respected. In the majority of cases ballot boxes were properly sealed, ballot papers were counted before polls, and empty ballot boxes were presented to all presents. Of serious concern, ballot papers were missing in 20 percent of the polling stations visited while ballot boxes, PVs and voters lists were missing in less than 10 percent of the cases.

16 123 } The Carter Center 2011 Elections in the Democratic Republic of the Congo

Poor presence of security and disorganization of CENI agents in polling centers led to crowd violence in some instances. For example, in several Kinshasa locations, large crowds of UDPS supporters shouted pro-Tshisekedi slogans inside voting centers, violating the prohibition on campaign activity and possibly intimidating voters and election officials. In several cases, poll workers who were allegedly tempering with ballot papers were threatened with violence. In Kananga a local observer was molested when found in possession of marked ballot paper she was given as a proof of ballot marking. The actual (and alleged) circulation of ballot papers worsened an already volatile climate in some places.

Women were members of polling staff in 70% of the polling stations. While it is promising that 30 percent of the polling station presidents were women, improvements remain necessary to reach gender equality.

The overall evaluation of the polling process by Carter Center observers found that procedures were generally respected in 35 percent of stations visited. They reported that 49 percent of polling stations visited showed minor problems unlikely to affect the results. The level of disorganization prevailing in some polling stations led our observers give a poor evaluation in 16 percent of cases.

The results process is ongoing and Carter Center observers remain deployed to monitor the tabulation process.

ELECTORAL DISPUTE RESOLUTION

State practice notes that effective dispute mechanisms are essential to ensure that effective remedies are available for the redress of violations of fundamental rights related to the electoral process.48 The resolution of disputes is relevant throughout the entire electoral cycle, and includes any mechanism established to hear and adjudicate election related disputes. This right is fundamental to ensuring all other human rights of citizens may be fulfilled.

According to the Congolese Bar Association, there are few legal remedies within the DRC available for breaches of electoral law. The Supreme Court is tasked with handling electoral disputes that reach its chambers. However, many have questioned its efficacy, noting that the location of the court in Kinshasa makes it difficult to reach from most regions in the Congo.49 Observers were also told that many citizens avoid the court system since they believe judges are not impartial in their work and may be swayed by political interests instead of justice. Due to the political influence of ruling party members, many lawyers are also often reluctant to take cases that would oppose the PPRD for fear of some negative repercussion, political or otherwise.

CENI’s capacity to address adequately electoral disputes was often questioned throughout the campaign. CENI does have a person in charge of responding to inquiries from political parties and stakeholders regarding the electoral law and the constitution. Nevertheless, CENI is limited in its enforcement power as it may issue verbal warnings for legal infractions but has no legal authority.

48 Art. 40, the SSRC Rules and Regulations on Polling, Sorting, Counting and Declaration of Results 49 The MLC party feels there should be a constitutional court in place to handle this matter. 17 124 The Carter Center 2011 Elections in the Democratic Republic of the Congo

The National Mediation Committee was established late in the electoral process; prominent religious leaders were named on Nov. 18, 2011. Designation of mediators was done without consultation with political parties and it appears parties were unaware of the mechanism and it could not play an effective role. As a result, the election period saw a number of disputes arise due to the lack of dispute resolution capacity in the DRC.50 As a demonstration of pressing need for such a mechanism, in Goma a mediation committee for electoral conflicts was established and had its first meeting on Nov. 7 to resolve complaints filed with CENI concerning campaign conduct and activities. Complaints of minors implicated in party campaign activities were addressed. This committee appears to be at the initiative of Goma political parties and the CENI SEP.

Based on findings of Center observers, it appears that the electoral dispute resolution mechanisms in both the CENI and at the national level lack wide accessibility to citizens and are perceived to be partial. The underdeveloped system does not seem to sufficiently protect citizens’ fundamental right to adjudicative remedy for alleged violations of their rights. Citizens’ awareness of the DRC’s inadequate dispute resolution mechanisms is believed to have contributed some to the many street protests and violence that have permeated this election; many voters are frustrated and feel they have no other alternative but to protest in order to have their voice heard.51 The Center would thus recommend the CENI devote effort to putting in place a more robust dispute resolution system in advance of upcoming provincial and local elections so that it can uphold its international and regional obligations to provide redress for the violation of fundamental rights related to the electoral process.

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50 Observers learned of complaints filed by the UDPS to the CENI later in the campaign. These included allegations that: voter’s cards were purchased, that the PPRD engaged in illegal early campaigning activity, and that mobile phones were given out in exchange for votes; that the PPRD gave motorcycles to employees in governmental departments. The UDPS also complained that the CENI violated Art. 8 of the Election Code concerning the required posting of the voter’s list at BVDs. 51 Perhaps related to this, opposition parties typically incited disputes by denouncing each step of the electoral process to undermine the election credibility. 18

125 The Carter Center 2011 Elections in the Democratic Republic of the Congo

FOR IMMEDIATE RELEASE Dec. 10, 2011 Contact: Baya Kara in Kinshasa +243 81 240 7659 or Deborah Hakes in Atlanta +1 404 420 5124

Carter Center: DRC Presidential Election Results Lack Credibility

The Carter Center finds the provisional presidential election results announced by the Independent National Election Commission (CENI) on Dec. 9 in the Democratic Republic of the Congo to lack credibility. CENI results point to the re-election of incumbent President Joseph Kabila with 49 percent of the vote followed by Etienne Tshisekedi with 32 percent and Vital Kamerhe with 7.7 percent. Voter turnout was 58 percent.

Carter Center observers reported that the quality and integrity of the vote tabulation process has varied across the country, ranging from the proper application of procedures to serious irregularities, including the loss of nearly 2,000 polling station results in Kinshasa. Based on the detailed results released by CENI, it is also evident that multiple locations, notably several Katanga province constituencies, reported impossibly high rates of 99 to 100 percent voter turnout with all, or nearly all, votes going to incumbent President Joseph Kabila. These and other observations point to mismanagement of the results process and compromise the integrity of the presidential election. Candidates and parties have a limited time to submit any complaints to the Supreme Court, and tabulation for the legislative elections is ongoing.

The problems observed in the tabulation and announced results are compounded by inadequate access for observers at multiple compilation centers around the country and no official access to the national results center in Kinshasa. The Carter Center is therefore unable to provide independent verification of the accuracy of the overall results or the degree to which they reflect the will of the Congolese people.

Challenges in the results process were further evident in the CENI delays in announcing the results first for two days after the original date of Dec. 6 and then a second one-day delay to Dec. 9. Presidential candidates and the Congolese people are to be commended for waiting peacefully for the announcement of results, and the Center encourages all actors to maintain the same level of responsibility. It is also the responsibility of Congolese political actors and institutions to conduct their own examination of the election results and identify political solutions. The Carter Center is ready to assist in these processes if requested and appropriate.

The Carter Center maintained 26 teams of international, impartial observers deployed in Kinshasa and the 10 provinces for the counting and tabulation. This assessment is based on direct observation during visits to 25 local results compilation centers (CLCRs) where tabulation of results was conducted and a preliminary examination of the published results.

126 The Carter Center 2011 Elections in the Democratic Republic of the Congo

The Tabulation Process

The electoral law1 provides that immediately after counting, results forms are signed by all members of the polling station and witnesses, a copy of the results form is given to witnesses,2 a copy of the results form is posted outside the polling station, and results forms and other election materials (ballot boxes, counted and unused ballots) are sent to the 169 CLCR. All materials are supposed to be collected and transported securely to the CLCR.

Heads of polling centers were responsible for collecting and delivering all polling station material from their polling center including four sets of envelopes containing results by polling centers; one each for the CLCR, the national board of CENI, the provincial executive secretary of CENI (SEP), and the Supreme Court. Upon arrival at the CLCR, heads of polling centers present themselves to a reception desk to sign over all of their election materials. If all material was accounted for, the heads of polling centers were released of responsibility and sent home.

Upon reception, the results envelope for the CLCR is sent to the collation desk, while the others are sent to archiving for later transmission to their final recipients. The results documents then pass through four desks where they are checked for consistency, the data entered on computers and compiled for transmission to the SEP and ultimately posted in front of the CLCR. At one stage, inconsistent documents may be reconstructed the basis of the counting form and polling station activity log by a team of three CENI members. After the compilation of results from all the constituencies under its responsibility, CLCRs transmit them to the SEP who consolidate for the province and send these to the CENI for publication of preliminary results.3

General Findings

Soon after election day, unofficial results started to circulate online and via SMS. Additional threatening messages were sent to members of domestic and international election observation missions. On Dec. 3, the minister of interior ordered the suspension of the emission and reception of SMS justified by the reportedly massive distribution of anonymous messages of intimidation, death threats, and calls for violence. This measure is an excessive attempt to deny freedom of expression; the authors of such messages could have been identified through regular channels of investigation.

Other heavy handed responses were applied to media. The Superior Council of Audio Visual Communication suspended two broadcast networks without an official decision and one newspaper close to the opposition. In Mbuji Mayi, police closed broadcaster RLTV without cause.

In comparison to the 2006 elections, the counting and tabulation procedures remained similar in their complexity which could have contributed to the uneven application across CLCRs and created opportunities for manipulation of results. As was the case five years ago, the logistical challenges of collecting, securing, and recording the results caused major difficulties for which CENI showed an insufficient level of preparation. CENI staff from voting centers and CLCRs were required to work extremely long hours for days at a time, often without adequate shelter, food, or water in trying and crowded physical conditions.

In most of the cases observed, CLCRs were properly secured by police (military in some cases), however, in 15 percent of the cases their behavior could have influenced or intimidated CLCR personnel. In 15 percent of CLCRs observed, the reception and handling of sensitive election

1 Electoral Law, Arts. 68 and 69 2 Electoral Law, Art. 68 3 Electoral Law, Arts. 70 and 7 1

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material did not follow the established procedures. Candidate witnesses were present in almost 90 percent of the cases but their physical position in the CLCR and access to information varied, disabling some from following all steps of compilation.

Where problems with results paperwork necessitated a recount of ballot papers, witnesses were present in only a slim majority of cases observed. Archiving was reported to be disorganized in 25 percent of the cases and the results envelopes bound for the SEP, CENI, and the Supreme Court did not leave the CLCRs before the end of tabulation. Equipment to transmit electronic record of scanned individual polling station results forms to SEP and CENI was present in 73 percent of the cases but observers could not always confirm if they were functional or in consistent use.

In many instances, heads of voting centers waited outside CLCRs for several hours and sometimes days with no organized provision of shelter, food, or water. Bulky items (mainly used and non used ballot papers and ballot boxes) were stockpiled outside of CLCRs, most of the time without care or protection from the weather. Even more importantly, bags of ballot papers and the envelopes containing results forms and other polling station paperwork were opened by heads of voting centers outside before they were officially received. After reception, the working conditions and storage provisions of CLCR varied. In some instances, bags of ballot papers were piled wherever floor space allowed, or spilled to the floor where they were stepped on by personnel because of lack of space. In more spacious centers, material was either stored in warehouses and piled in a more ordered manner or left outside, covered by tents and tarpaulins. Where a lack of organization in the storage of sensitive material prevailed, it was nearly impossible for CENI personnel to recover misplaced material.

In multiple observed CLCR (e.g. Boma, Matadi, Bandundu, Mweka, and others) Carter Center observers found tabulation processes that they rated fair or good in 60 percent of cases. The overall assessment of other locations varied, with 40 percent rated poor based on an overall assessment of the application of procedures.

Tabulated Results Lack Credibility

The tabulation process in Kinshasa and Lubumbashi proved to be especially problematic. The lack of preparation evident in these two major cities resulted in serious irregularities and produced a tabulation process that lacks credibility. The generalized deficiencies described above prevailed in the extreme in both locations. Sensitive materials arrived by various means of transport, both official and private, were handled haphazardly, sometimes with bags and results envelopes opened, were stockpiled outside with insufficient or no protection from the elements (after a rain storm results forms were found hanging on sticks to dry), heads of polling centers were observed opening sealed envelopes with results forms and completing or altering paperwork in breach of procedure. Coupled with the general disorganization of these centers, a significant number of polling station results were lost. In Kinshasa, nearly 2,000 polling station results have been lost (representing as many as 350,000 voters) and hence will never be tallied. Another 1,000 polling station results have been lost elsewhere in the country (representing 500,000 voters).

Also in Kinshasa, the uneven application of procedures led to heated debates on how to treat the unsigned results forms, often leading to partisan interpretation of procedures. In some instances, contested documents were said to have been transferred to the Supreme Court which at this stage remains impossible to confirm. CLCR staff sometimes appeared to be poorly trained with some staff reporting that colleagues had received no training. Furthermore, ineffective communication of procedural decisions made while the tabulation was ongoing resulted in important decisions being applied unequally, raising additional possibilities of manipulation of results, as neither CENI staff nor witnesses and observers could verify correct procedures.

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Physical and information access for observers and witnesses was inadequate and varied from day to day and among CENI staff at different CLCR stations resulting in a lack of transparency of the process. In some instances, senior CENI officials directly obstructed observation by Carter Center observers. For example, in Lubumbashi, Carter Center observers witnessed the president of a CLCR instructing his staff during their training not to give out any information to the observers. Similar instructions were given to CENI staff during tabulation in Kinshasa.

According to the electoral law, each CLCR is to send its compiled result form to the SEP, who in turn sends compiled results for the province to CENI in Kinshasa for the announcement of a national result. It appears that only the compiled CLCR result forms have been sent to CENI, although the commission should receive its own envelope with an original copy of the polling station results. No comparison of physical results forms for verification of CLCR compilation at the national level could be observed and therefore assessed by the Center. Although formally requested from CENI, no official access was granted to Carter Center observer (or any others) to the national results center (CNT).4 Thus, data transmission and management have been conducted in a nontransparent manner, eliminating a possible, and important, avenue to build confidence in the final election results, if observers and witnesses had been able to verify the handling of compiled results (CENI’s organizing law contains a general transparency provision, the spirit of which should apply throughout the entire electoral process, even if specific arrangements are not specified in the electoral law).5

The provisional results announced by CENI reveal multiple results that lack credibility. In Katanga province, two CLCR results are especially notable. The Mulemba Nkulu CLCR reports 99.46 percent voter turnout with 100 percent of votes, or 266,886 for Joseph Kabila, and fewer than 0.5 percent blank or null votes. All polling stations reported. Kabongo CLCR records similar high voter turnout with 227,885 votes for Kabila and only three votes for other candidates. A total of eight CLCR in Katanga report voter participation above 80 percent, far above the national average of 58 percent, and vote shares of 89 percent or higher for Kabila.

Although the specific mechanism through which such vote totals may have been generated is unclear, numerous conditions cited in previous Carter Center reports may have been enabling factors, notably concerns about the credibility of the voter register and the potential multiple voting through abuse of the derogation votes and list of omitted voters, or through manipulation of vote totals at polling station or various stages of the tabulation. Thorough analysis with the records of domestic observers and candidate witnesses could yield more information.

Review of locations with similar high percentage votes for Etienne Tshisekedi does not reveal the same coincidence of perfect collection of polling station results and extremely high voter turnout. Notably, although Tshisekedi scored very well in much of Kasai Occidental, 11 of 12 CLCR reported voter turnout below the national average, and in nine CLCR returns from Kasai Oriental where he received 90 percent of more of the vote, the rate of results collection and voter turnout were within reasonable variation of national rates.

This assessment does not propose that the final order of candidates is necessarily different than announced by CENI, only that the results process is not credible. However, further analysis of preliminary results could reveal other important patterns and variations suggestive of a vote counting and tabulation that lacked uniform application to all Congolese voters. Additional analysis will be provided in future Carter Center reports.

4 A CENI national results center for data compiled at CLCR and transmitted by SEPs 5 Organic Law for Organization and Function of Independent National Election Commission, July 28, 2010

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Background: The Carter Center international election observation mission has been in the DRC since Aug. 17, 2011, following an invitation from CENI. The mission was led by former President of Zambia Rupiah Bwezani Banda and Vice President of Carter Center Peace Programs Dr. John Stremlau, and is composed of 70 observers from 27 countries.

The Center thanks CENI and all those Congolese who have welcomed Carter Center observers and given their time to meet with them.

The Center's observation mission in the DRC is conducted in accordance with international standards for elections, and the observation mission was conducted in accordance with the Declaration of Principles for International Election Observation and the Code of Conduct for International Observers that was adopted at the United Nations in 2005 and has been endorsed by 37 observation groups.

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"Waging Peace. Fighting Disease. Building Hope." A not-for-profit, nongovernmental organization, The Carter Center has helped to improve life for people in more than 70 countries by resolving conflicts; advancing democracy, human rights, and economic opportunity; preventing diseases; improving mental health care; and teaching farmers in developing nations to increase crop production. The Carter Center was founded in 1982 by former U.S. President Jimmy Carter and his wife, Rosalynn, in partnership with Emory University, to advance peace and health worldwide.

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FOR IMMEDIATE RELEASE Feb. 23, 2012 Contact: Baya Kara in Kinshasa +243 81 240 7659 or Deborah Hakes in Atlanta +1 404 420 5124

Carter Center: Democratic Republic of the Congo Legislative Election Results Compromised

The Carter Center finds that as with the Nov. 28, 2011, presidential election in the Democratic Republic of the Congo (DRC), the integrity of the national assembly results has been compromised. It is difficult, and given the circumstances and amount of time that has passed, perhaps impossible, for the Independent National Election Commission (CENI) or any other body to reconstruct fully the results in the hopes of producing a faithful record of the will of the people. CENI has announced it will conduct an “after action review” of the electoral process, and the Center hopes that this self-assessment will produce a clear and detailed analysis of what worked in these elections and what did not, with special focus on the results process. More, however, needs to be done.

DRC faces a political dilemma. By definition, a contested election result lacks the confidence of many, and perhaps a majority of the people. Moreover, the institutions designed to safeguard that integrity, notably CENI and the Supreme Court, are not viewed by many Congolese as independent and trustworthy. In such strained and compromised circumstances, it is only through inclusive political dialogue, a thorough review of the electoral administration, and the use of legal means that the people of Congo will be able to claim their rights.1 To this end, The Carter Center recommends an evaluation and in-depth examination of the entire electoral process, with the participation of all political party actors, and including transparent reviews of polling station-level results and other key electoral information. Such an evaluation is crucial to determine the will of the Congolese people and enabling potential legal challenges to be pursued through the judicial system. In addition, such a review is essential to prepare for future elections, including provincial and local elections due to take place during 2012-13. If political dialogue and an inclusive assessment of the electoral process are successful, potential outcomes could be a decision to re-run some, or all of the elections, or some other form of political accommodation to establish a legitimate governing authority.

Summary of key concerns of The Carter Center international election observation mission:

• general absence of transparency in CENI communication about election operations;

1 The DRC has ratified a number of international and regional treaties through which it has obliged itself to follow certain key human rights standards. Art. 215 of the Congolese Constitution importantly notes that international treaties and covenants that the DRC signs or ratifies are superior to any national laws, barring any formal reservations the DRC may have expressed. 1 131 The Carter Center 2011 Elections in the Democratic Republic of the Congo

• poor access to information on CENI arrangements for delivery, receipt, and processing of polling station results and ballot papers at tabulation centers; • insufficient engagement by the CENI with political parties and presidential candidates; • violations of peaceful assembly rights during the campaign and post-election periods and inappropriate use of force by Congolese police and other security forces to disperse gatherings; • absence of observer access to CENI national results center; • multiple delays in the two-month long tabulation of legislative results; • failure of CENI to publish polling station results for the legislative election (in contrast to positive step to do so for the presidential election); • inadequate level of accountability for those responsible for the loss of polling station results in Kinshasa and other provinces; and, • the non-publication of judicial decisions by the Supreme Court.

During its six-month presence, the Carter Center’s international election observation mission deployed long and short-term observers throughout the 11 provinces to observe the preparation and conduct of the presidential and legislative elections in the DRC on Nov. 28, 2011. The Center observed election preparations, including candidate nomination and the campaign period, along with voting and tabulation of results. This statement focuses on events since the Center’s previous public statement of Dec. 10, 2011. Following the departure of the Center’s long-term observers in mid-December, members of the core team followed electoral developments and returned to Kinshasa in January 2012 to be present for the conclusion of tabulation of legislative results.

DRC faced significant challenges in the overall organization of the elections and in meeting a constitutional deadline of Dec. 6, 2011. The late establishment of the CENI and a divisive and partisan political context created additional pressures on the successful organization of elections. Despite many missed deadlines in the electoral calendar, CENI met the overall constitutional deadline and ensured respect of periodic elections. With a few exceptions, the election process was peacefully conducted. However, voting and the tabulation process were marred by serious irregularities, undermining the credibility of the presidential and legislative results announced by the CENI.

The pressure to hold elections on Nov. 28 to respect the constitutional deadline may have contributed to the flawed polling station map and compressed period for the recruitment and training of poll workers. However, the lack of engagement with political parties and the refusal to allow parties access to the central server reflects insufficient political will on the part of the CENI to hold transparent and credible elections.2 The lack of transparency shown by the CENI merits reflection on the commission’s political

2 “An electoral body, however styled,…must…act with …a maximum of transparency, where appropriate consulting in a meaningful way with interested parties before decisions are taken on important matters and being prepared to give reasons for such decisions.” Commonwealth Secretariat, Commonwealth Secretariat Good Commonwealth Electoral Practice: a Working Document, para. 9

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composition and its capacity to be independent and credible for the next round of elections.3

Tabulation The poor management and disorganization of the local results tabulation centers (CLCRs) during the tabulation of presidential results contributed to the loss of at least 3, 500 polling station results (affecting 1.2 million potential votes), including some 2,000 in Kinshasa. Highly implausible results were reported from four districts in Katanga province, which recorded between 99-100 percent of the vote for incumbent President Joseph Kabila, with rates of voter participation of almost 100 percent. A further 10 districts had 95 percent of the vote for Kabila, garnering some 1.8 million of his 8.8 million votes overall. These districts also reported a rate of null or blank ballots well below the national average; yet even those small totals were greater than the number of valid votes recorded for all 10 of the other presidential candidates combined. These facts, coupled with the fact that CENI signed off and accepted these results, followed by the Supreme Court, undermine the credibility of not only these particular results but erode the integrity of the overall administration of the tabulation.

The tabulation of legislative results was affected by the same management and disorganization problems as the presidential results since all arrived at tabulation centers at the same time and under the same condition. In the face of heightened public and political scrutiny, CENI suspended operations after a number of cases of fraud were reported by party agents and political parties, and dispatched newly-appointed CLCR supervisors when operations resumed. Despite this additional safeguard, the legislative results announced by the CENI lack credibility and have been challenged by many candidates and parties, who have filed complaints against the CENI. Similar irregularities during presidential ballot tabulation were reported to have occurred during the legislative tabulation. The 3,500 missing polling station results affected both presidential and legislative elections and no measure was taken to identify those responsible for this loss.4 CENI suspended tabulation on Dec. 21 in an effort to address problems but began to release provisional partial results in several increments beginning Dec. 28. On Feb. 1, 2012, two weeks behind schedule, CENI announced the last tranche of available results.5

Senior members of the CENI who supervised legislative tabulation were responsible for resolving disagreements in procedures within their CLCR and authorizing a recount of ballots when necessary. It is not clear to the Center if any recounts were conducted nor on what legal authority CENI would have implemented recounts. Some supervisors also

3 “An independent and impartial authority that functions transparently and professionally is internationally recognized as an effective means of ensuring that citizens are able to participate in a genuine democratic process, and that other international obligations related to the democratic process can be met.” UNHRC, General Comment 25, para. 20 4 “…Take all necessary measures and precautions to prevent the perpetration of fraud, rigging or any other illegal practices throughout the whole electoral process, in order to maintain peace and security.” SADC, Principles and Guidelines Governing Democratic Elections, para. 7.6 5 “There should be immediate release of official election results on completion of counting.” SADC PF,Norms and Standards for Elections in the SADC Region, para. 11.ii

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called for cancellation of tabulated results for their CLCR. This was the case for seven CLCRs: Kiri in Bandundu, Demba in Kasai Occidental, Ikela in Equateur, Kole and Lomela in Kasai Oriental, Masisi in North Kivu, and Punia in Maniema. Congolese electoral law does not recognize a challenge of results by the CENI and only the Supreme Court can nullify results.6 CENI’s proposed cancellation of results from these seven districts is evidence of serious problems (but not publicly disclosed) during voting operations and/or tabulation, of which the Center hopes the Supreme Court will be mindful when reviewing any legal challenges submitted by candidates in other districts.

Absence of Polling Station Results In contrast to the publication of polling station results for the presidential election, CENI has not done so for the legislative results, further eroding transparency in the results process and eliminating an important means for candidates and voters to verify the credibility of tabulation.7 Even though CENI claims to have installed scanning equipment in all 169 CLCRs for election staff to scan and send each polling station tally to a results center at CENI, it is apparent that this means of verification was at best imperfectly executed. The Carter Center recommends the CENI publish legislative results by polling station in order to provide the public the opportunity to review official tallies from individual polling stations.

Derogation/List of Omitted Voters Some 3.2 million of the overall 18 million votes, nearly 18 percent, were cast through derogation voting – voters casting a ballot at a location other than where they are registered. This high number of such votes reflects the many problems with CENI’s management of the voter register. While derogation voting has the potential to increase voter access to the polls, it is also open to abuse by multiple or non-registered voters, especially when, as observed by the Center, other controls such as inking of a voter’s finger after voting are not used comprehensively.

At the polling station level, copies of results forms received by The Carter Center from legislative candidates exemplify this practice. For example, in the province of Bandundu’s Popokabaka district, a polling station in the village of Imwela recorded 294 voters on the derogation list and zero on the list of registered voters. Another in the village of Kabama recorded 168 voters on the derogation list and 98 on the list of registered voters and in a third, the village of Mutsanga recorded 390 voters on the derogation list and 61 on the list of registered voters.

Results Analysis The legislative results announced by the CENI constitute a National Assembly of 98 political parties for 500 seats. This large number of parties reflects a fragmented political scene. Forty-five parties are represented in the assembly by a single member of

6 The Supreme Court is the competent body until creation of a constitutional court. 7 “When the counting process is completed the results should immediately be announced and posted at the counting station.” EISA and Electoral Commission Forum of SADC Countries, Principles for Election Management, Monitoring, and Observation in the SADC Region, p. 26

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parliament and more than 74 parties have fewer than five seats. The 10 parties with the largest representation are PPRD, UDPS, PPPD, MSR, MLC, PALU, UNC, ARC, AFDC, ECT, RRC, and MIP. Independents obtained a total of 16 seats.

This divided National Assembly composition clearly advantages President Joseph Kabila and his coalition of parties. His PPRD party alone was elected in 61 seats, and some 340 members of parliament of 500 total are members of his ruling coalition, while opposition parties are divided among their 110 representatives. Presidential candidate Etienne Tshisekedi’s party, UDPS, has the second most seats with 41, reflecting a strong regional base, 25 were elected in the two Kasai provinces, while third place presidential candidate Vital Kamerhe’s UNC came third with 17 seats, 10 from the two Kivu provinces.

A closer reading of the legislative election results reported by district raises questions about the credibility of the results process. First, compared to the near total domination of presidential results for incumbent Joseph Kabila in Katanga province, those same districts reveal a striking diversity in the choice of voters for legislative candidates. In all cases, the parties of presidential candidates who implausibly scored zero are reported to have hundreds and in some cases thousands of votes for their legislative candidates in these otherwise Kabila strongholds. In this sense, even if the legislative results reflect a more faithful effort to record voter preferences, they still raise questions about the integrity of the tabulation of presidential results.

Other abnormalities are revealed in a district comparison of presidential and legislative results, as, for example, in the comparison of the number of voters for each election and the number of annulled ballots. For instance, in the Walikale district in North Kivu, 28,810 more voters for the presidential election were recorded than for the legislative election while an additional 4,926 were recorded in Malemba Nkula in Katanga. The discrepancy in the rate of invalid ballots is also noteworthy as in the case of Tshangu district of Kinshasa where the rate reached 10 percent in the legislative poll, while the presidential ballot yielded just 3.6 percent. This difference is possibly reflective of the enormous complexity of a legislative ballot with 1,575 candidates for 15 seats. However, Kinshasa, notable as an area of Tshisekedi support stands in contrast to Kabila’s vote bank in Katanga that recorded the lowest rates of invalid ballots in both presidential (2.7 percent) and legislative elections (5.6 percent). Other patterns are evident in the district results but more thorough analysis is impossible unless CENI releases polling station results.

Opposition Boycott After the announcement of presidential results on Dec. 9, 2011, UDPS leader Etienne Tshisekedi refused to accept the results and proclaimed himself president on Dec. 23 at his residence. Since his proclamation, Tshisekedi has been under de facto house arrest with his home surrounded by police even though there has been no decision from the Ministry of Interior authorizing a house arrest.8

8 “Every individual shall have the right to liberty and to the security of the person. No one may be deprived of his freedom except for reasons and conditions previously laid down by law. In particular, no one may be arbitrarily arrested or detained.” AU, African Charter on Human and Peoples’ Rights, Art. 6.

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Mr. Thsisekedi has also refused to recognize the legislative results. Though he is the leader of the party, Tshisekedi’s position, through his unilateral proclamation, calls for an annulment of the legislative results and a boycott by his party’s 41 elected members of the National Assembly, may come into conflict with the overall UDPS party agenda. If the boycott is upheld, his political ideas will not be heard in the national assembly without UDPS party representation, thereby silencing the largest opposition party. At the inaugural Feb. 16 National Assembly session, the sole UDPS member present, Timothy Nkisi Kombo, was designated as provisional national assembly president. However, UDPS expelled Nkisi after the session for violating the party’s boycott.

The Supreme Court Under Article 75, the court system holds real power to rectify legislative results in cases of clerical error.

The deadline for appeals for presidential election results is two days after the announcing of provisional results (Article 73 of the electoral law) and the deadline of processing is seven days after submission of a complaint (Article 74 of the electoral law). The Supreme Court received only one challenge for the presidential election, from Vital Kamerhe, and set Dec. 15 to rule on his complaint.9 The final decision by the Supreme Court rejected all of the complainant’s arguments and confirmed the victory of Joseph Kabila. The Carter Center regrets the Court’s decision has still not been published.

Challenges of legislative election results are governed by the same rules of procedure and the same obligations as those of presidential challenges. It is defined by articles 73 and 76 of the electoral law. The only difference is that the deadline for processing complaints is eight days after the announcement of provisional presidential results and two months after the legislative results.

The Supreme Court has received a 507 important challenges from legislative candidates. The court published on Feb 15, one day before the first seating of the national assembly, a list of legal challenges involving 72 deputies.

The Supreme Court must conduct an exhaustive review of the complaints submitted and demonstrate its determination to take all necessary measures to arrive at correct results that accurately reflect the will of the people, including nullification and re-run of elections if necessary.10

9 “Every individual shall have the right to have his cause heard. This comprises: (a) the right to an appeal to competent national organs against acts of violating his fundamental rights as recognized and guaranteed by conventions, law, regulations and customs in force; (b) the right to be presumed innocent until proved guilty by a competent court or tribunal; (c) the right to defence, including the right to be defended by counsel of his choice; (d) the right to be tried within a reasonable time by an impartial court or tribunal.” AU, African Charter on Human and Peoples’ Rights, Art. 7. 10 State practice notes that effective dispute mechanisms are essential to ensure that effective remedies are available for the redress of violations of fundamental rights related to the electoral process.The SSRC Rules and Regulations on Polling, Sorting, Counting and Declaration of Results, Art. 40. 6 136 The Carter Center 2011 Elections in the Democratic Republic of the Congo

Civil Society Congolese civil society organizations deployed non-partisan observers in large numbers on election day.

The Episcopal Commission for Peace and Justice (CEJP)/National Episcopal Conference of the DRC (CENCO) was the most visible on the ground with 30,000 observers. On Jan. 11, CENCO published a declaration outlining many faults in the electoral process and describing a chaotic environment. CENCO has declared that the electoral process was marred by serious irregularities that undermine the credib ility of the published results and has called on the CENI leadership to resign if it does not address the problems they identified. CENCO also appealed to its supporters and the general public not to use violence to express their discontent with the election results. A proposed public demonstration by the church on Feb. 16 was obstructed by police with several arrests. In a separate statement, the Center has denounced these moves as unnecessary restriction of fundamental freedoms of assembly and expression.

Other prominent domestic observer networks who have published their assessments include RENOSEC and CAFCO.

The Carter Center supports Congolese civil society in its civic activism and encourages it to continue, despite challenges, in its efforts to find truth and build democratic institutions by using civic and democratic methods. The Center supports civil society initiatives aimed to achieve democracy thorough peaceful and legal means.

Conclusion The Carter Center commends the Congolese people for mobilizing to vote on election day despite the many difficulties in locating polling stations. The Center reiterates its conviction in the capacity of the people to consolidate democracy through strong, elected institutions to represent them and protect their interests.

The Carter Center will publish a final report of its observations during the electoral process as well as recommendations for the next round of elections. The Center thanks all of the actors in the electoral process for taking the time to meet with and provide information to observers. The Center will continue to monitor developments in the DRC and will contribute at any opportunity to bring added value to the reinforcement of democratic institutions.

Background: The Carter Center international election observation mission began on Aug. 17, 2011, following an invitation from CENI. The mission was led by former President of Zambia Rupiah Bwezani Banda and Carter Center Vice President for Peace Programs Dr. John Stremlau, and is composed of 70 observers from 27 countries.

The Center's observation mission in the DRC is conducted in accordance with international standards for elections, and the observation mission was conducted in accordance with the Declaration of Principles for International Election Observation and

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the Code of Conduct for International Observers that was adopted at the United Nations in 2005 and has been endorsed by 37 observation groups.

The Carter Center also supported the training of some 6,000 domestic observers deployed with CEJP/CENCO.

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"Waging Peace. Fighting Disease. Building Hope." A not-for-profit, nongovernmental organization, The Carter Center has helped to improve life for people in more than 70 countries by resolving conflicts; advancing democracy, human rights, and economic opportunity; preventing diseases; improving mental health care; and teaching farmers in developing nations to increase crop production. The Carter Center was founded in 1982 by former U.S. President Jimmy Carter and his wife, Rosalynn, in partnership with Emory University, to advance peace and health worldwide.

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The Carter Center at a Glance

Overview: The Carter Center was founded in 1982 Donations: The Center is a 501(c)(3) charitable by former U.S. President Jimmy Carter and his wife, organization, financed by private donations Rosalynn, in partnership with Emory University, from individuals, foundations, corporations, and to advance peace and health worldwide. A nongov- inter­national development assistance agencies. ernmental organization, the Center has helped Contributions by U.S. citizens and companies to improve life for people in more than 70 countries are tax-deductible as allowed by law. by resolving conflicts; advancing democracy, human rights, and economic opportunity; preventing Facilities: The nondenominational Cecil B. Day diseases; improving mental health care; and Chapel and other facilities are available for weddings, teaching farmers to increase crop production. corporate retreats and meetings, and other special events. For information, (404) 420-5112. Accomplishments: The Center has observed more than 85 elections in 34 countries; helped farmers Location: In a 35-acre park, about 1.5 miles east of double or triple grain production in 15 African coun- downtown Atlanta. The Jimmy Carter Library and tries; worked to prevent and resolve civil and inter- Museum, which adjoins the Center, is owned and national conflicts worldwide; intervened to prevent operated by the National Archives and Records unnecessary diseases in Latin America and Africa; Administration and is open to the public. and strived to diminish the stigma against mental (404) 865-7101. illnesses. Staff: 160 employees, based primarily in Atlanta. Budget: $96.0 million 2011–2012 operating budget. Martin Frank

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The Carter Center One Copenhill 453 Freedom Parkway Atlanta, GA 30307 (404) 420-5100 u Fax (404) 420-5145 www.cartercenter.org

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